Drax Wood Pellets
 - Question

Baroness Boycott: To ask Her Majesty’s Government what assessment they have made of (1) the sustainability, and (2) the impact on biodiversity, of the wood pellets used by Drax for electricity generation in the United Kingdom.

Lord Callanan: My Lords, in 2020 plant-based biomass power generation made up approximately 9% of the total renewable electricity generation in the UK; this includes generation from wood pellets. The biomass that powers such generation meets strict sustainability criteria that the Government set out in legislation. The sustainability criteria include requirements for sustainable sourcing, covering a range of social, economic and environmental issues, including protecting biodiversity. The UK supports only biomass that complies with these strict sustainability criteria.

Baroness Boycott: I thank the Minister for his Answer, but I beg to differ. Some of the forests being logged for biomass are among the most ecologically rich and diverse in the world. The North American coastal plain, where most UK biomass imports—particularly Drax—come from, is a global biodiversity hot spot. Clear-cutting for biomass is occurring even in reserves that are designated protected forests. We are paying Drax £832 million a year in subsidies, and at the moment it is the fifth most polluting power station in Europe. I again ask the Minister my Question on the Order Paper. The impact on biodiversity, rather than non-existent as he said, is in fact very severe. When will the Government step up to the plate and do something about this?

Lord Callanan: I am afraid that I and the noble Baroness will have to disagree on this. Biodiversity is one of the criteria we take into account. We have sent officials out to southern USA, where most of this biomass comes from. This is residue, by-product from the forestry process, so it is not unsustainable. I think the noble Baroness is wrong.

Baroness McIntosh of Pickering: Would it not be more sustainable if my noble friend could source all the wood from fast-growing wood coppice or miscanthus from farmers in North Yorkshire and across Yorkshire? It is closer to Drax and would reduce the carbon footprint, as well as helping local farmers with their growing capacity.

Lord Callanan: Indeed it would, and we already source some small quantities from the UK, but the noble Baroness needs to look at the size of the forests in southern USA, which are, I think I am right in saying, about the size of the landmass of western Europe. Great and sustainable though North Yorkshire wood is, I suspect we would struggle to meet the quantity required.

Lord Grantchester: Drax claims that burning wood pellets is carbon-neutral because trees absorb as much carbon dioxide when they grow as they emit when they are burned. Is the Minister able to justify that claim from a thorough analysis that includes all supply-chain emissions and with effective CCUS? Would that also have to include hydrogen production?

Lord Callanan: No. In a sustainably managed forest, which all our biomass comes from, there will be stands of trees of different ages, which will be harvested in gradual sequence and then replaced as they reach maturity. The market price for biomass is far lower than it is for timber and board manufacture, which are far more valuable. These are by-products from the forestry process.

Baroness Sheehan: My Lords, part of the problem of how we got here is that the Government took at face value the assurances from biomass energy producers that their products were sustainable. Will the Government now commit to implementing a due diligence exercise in future, so that producers have to prove where they have sourced their product from?

Lord Callanan: They already say where their product has come from; this evidence is independently audited. Generators must report against the criteria on a monthly basis and Ofgem performs checks to ensure that the criteria are met and deductions in certificate issuance or payments are applied proportionately for the energy produced. We are already doing the checks that the noble Baroness suggests.

Lord Randall of Uxbridge: My Lords, I declare my conservation interest as in the register. Will my noble friend the Minister be able to put in the public domain these independent assessments of biodiversity loss—or no loss, as he has it? As far as I am concerned, and from what I hear, this is having a severe impact on biodiversity and, in primary forest that has been cut down, on species such as the cerulean warbler, the prothonotary warbler and many others. Is he aware that some of the most deprived communities in the areas of these wood-processing plants are suffering great health problems? Is it right that the Government are subsidising this?

Lord Callanan: Where the evidence is published, I will certainly make sure that the noble Lord receives a copy of it, but I think he is wrong on this. As I said, these are not primary trees but trees that are being harvested anyway; these are branches and other offcuts from the forestry process. It is sustainably managed and the criteria are checked, including for biodiversity.

Baroness Jones of Moulsecoomb: Do the Government understand that Drax has been taken to court twice this year for air pollution offences and reported to the OECD for misleading and, frankly, untrue statements about its environmental impacts? Does the Minister think the Government are being a bit naive in not doing due diligence with somebody who actually knows what they are talking about from the green point of view?

Lord Callanan: I would challenge the noble Baroness’s statement that some of the green groups know what they are talking about, but we make sure that the process is independently audited and all of the biomass is—I repeat—sustainably produced.

Baroness Redfern: My Lords, in relation to transforming the UK’s most carbon-intensive industrial cluster into the world’s first carbon-neutral industrial cluster by 2040, can the Minister tell us not only about safeguarding existing jobs but how many new green skilled jobs this is predicted to bring to my area of Yorkshire and the Humber?

Lord Callanan: I am afraid the noble Baroness will have to write to me with details of which scheme she is referring to.

Lord West of Spithead: My Lords, does the Minister think there might be merit in closing Drax and building a new nuclear power station?

Lord Callanan: There will certainly be merit in producing new nuclear power stations. I share the noble Lord’s enthusiasm for nuclear power. It was a shame that the Labour Government of which he was a part stopped building nuclear power stations; that was a retrograde step. We are committed to future nuclear, but we can do that alongside sustainable biofuels.

Baroness Bakewell of Hardington Mandeville: My Lords, the burning of woody biomass produces more carbon emissions per unit of final energy than burning coal. The Drax power station is not decarbonising the energy sector—quite the opposite—and is the UK’s largest single source of carbon emissions. The wood pellets burned by Drax come from whole trees clear-cut logged in natural forests worldwide, not from trees grown for the purpose or from waste by-products as the Minister said. Is it time the Government thought again about the £2.1 million daily subsidy that Drax receives?

Lord Callanan: At the risk of repeating myself, I think that the noble Baroness is wrong on the points that she makes. The process is independently audited and checked, and we have sent officials out to southern USA to ascertain that the claims are correct, and all the material burned in Drax is sustainably produced.

Lord Geddes: Since the noble Lord, Lord West, has led us slightly wider on the Question, can I ask why there is not more emphasis on tidal power?

Lord Callanan: The noble Lord gives me a great cue to talk about the contracts for difference scheme that we launched just this morning, which for the first time allows tidal power to bid. I completely agree with the noble Lord, and we are doing it.

Baroness Hayman: The Minister mentioned the contracts for difference, which include onshore wind. As he knows from the Bill that we discussed two Fridays ago, there are still planning issues with onshore wind development, particularly with replacement of current onshore wind. Will the Government look a little more sympathetically at supporting my Bill?

Lord Callanan: We had an extensive and informative discussion with the noble Baroness on her Bill, and onshore wind, as I reminded her at the time, is included in the contracts for difference round that we launched this morning.

Medical Schools: Training Places
 - Question

Lord Robathan: To ask Her Majesty’s Government how many training places for new doctors there were in medical schools and other institutions in (1) 2000–01, and (2) 2021–22; and what plans they have, if any, to increase the number of places for 2022–23.

Lord Kamall: In the 2000-01 academic year in England, there were 4,300 government-funded medical school places. Initial data shows that, in 2021-22, 8,460 places have been taken up, including additional places for students who completed A-levels in 2021 and had an offer from a university in England to study medicine subject to their grades. The Government continue to monitor the number of medical school places that they fund to ensure that it is in line with NHS workforce requirements.

Lord Robathan: My Lords, the Answer is quite encouraging, but doctors and other medical staff are working flat out on our behalf, and we are told that there are not enough doctors. That is because we are not training enough. Some 21 years ago, Gordon Brown confected a row over a girl called Laura Spence, who was well qualified but was not able to get into Oxford to read medicine because there were not enough training places. We have had all three major parties in government in those 21 years, and there are still not enough training places. Rather than taking doctors from the poorest countries in the world, where they are needed, and bringing them here, does not my noble friend think that it is time to make sure that we train enough doctors in this country and that there are enough training places for them so we can actually service our own needs?

Lord Kamall: I thank my noble friend for the question, but there are record numbers of medical students in training. There are currently more than 35,000 doctors in undergraduate training and 60,000 doctors in foundation and speciality postgraduate medical training. On the international market, we follow strict ethical guidelines, in line with the World Health Organization guidelines.

Lord Watts: My Lords, is it not the case that the extra doctors that we were promised by 2016 will not be enough to compensate for the number of doctors who will retire? Can the Minister say something about what he is doing about the number of doctors who are going to retire shortly, which will cause even more of a shortage?

Lord Kamall: The noble Lord raises an important question, but the fact is that we are training more doctors, and we are recruiting internationally where it is ethical to do so. On retirements, we are looking at a scheme that lasts until 2024 to allow doctors to come back without it affecting their pension.

Baroness Finlay of Llandaff: My Lords, I should declare that I am a fellow of the Royal College of Physicians. Do the Government accept the report from that body, Double or Quits, which has shown that we need 15,000 medical school places annually? Doubling the number of medical school places to that number would cost £1.85 billion, which is only one-third of what hospitals currently spend on agency and bank staff. Therefore, an increase is an investment to save.

Lord Kamall: I thank the noble Baroness for that question and for the advice and expertise that she has passed on to me in my short time in this place. As part of the expansion, we have opened five new medical schools across England, in Sunderland, Lancashire, Chelmsford, Lincoln and Canterbury. Sometimes we have the training, but it is difficult to find doctors in certain locations. We have tried to move training as close to those locations as possible.

Lord Naseby: My Lords, as well as increasing the numbers, is it not equally important that we ensure that every newly qualified doctor, on whom we spend well over £200,000, signs up for at least four years in the NHS, as do every male and female who joins our Armed Forces today?

Lord Kamall: I thank my noble friend for that suggestion. I will look into it and get back to him.

Baroness Ritchie of Downpatrick: My Lords, will the Minister indicate what research has been carried out into the training opportunities for specialist doctors post-graduation who wish to pursue careers as consultant orthopaedic surgeons? At the moment, because of Covid investment resources, there are no training opportunities for them in Northern Ireland. Will the Minister raise this issue and indicate what efforts will be made to address it?

Lord Kamall: I thank the noble Baroness for sharing the experience of Northern Ireland. It is really important that we ensure that we have more training places and that we address the types of training that we do. As the noble Baroness will be aware, it is no longer a simple question of nurses and doctors: we are training a number of physicians’ assistants and specialists, and we will continue to do so.

Bishop of St Albans: My Lords, this latest Covid omicron variant has made us realise that we are one human race, and we are now facing a scandal whereby we are relying on bringing in doctors from some of the poorest parts of the world to look after our needs. For centuries, this country was renowned for sending doctors and nurses abroad and founding hospitals in all parts of the world. What consideration have Her Majesty’s Government given to ensuring not only that we are producing enough of our own doctors  but that we are expanding our tertiary education and bringing in more people to send them back to help some of these countries as part of our global Britain initiative?

Lord Kamall: When training doctors from abroad, we follow international guidelines and World Health Organization ethical guidelines. For example, when I recently had a meeting with the Kenyan ministry to talk about the UK-Kenya health partnership, the point was made to me that they were training far more people than they had places for in their own country. They thought that their talent was a valuable export, while at the same time, remittances went back to their country.

Lord Kakkar: My Lords, I draw attention to my registered interests. Does the Minister accept that long-term workforce planning requires an effective apparatus that is able to understand the changing population demographic, changes in the nature of the delivery of healthcare and how technology and innovation might impact that? Do Her Majesty’s Government have a view about establishing such an apparatus as part of the current Health and Care Bill before your Lordships’ House?

Lord Kamall: There has rightly been much discussion of workforce planning for the NHS and adult social care, and the Bill will build on this. Clause 35 will bring greater clarity and accountability in this area, requiring the Secretary of State and the NHS to produce a workforce plan.

Baroness Merron: My Lords, with the intensification of the Covid booster programme, more doctors will, of course, be diverted from their usual roles, making it even harder for people to get an appointment at their local surgery, and record waiting lists will continue to increase. What revisions will the Minister make to existing plans for numbers of training places to meet the need for more trained staff, including doctors, nurses, lab technicians and auxiliaries? How will the Minister respond to the report from the Royal College of Surgeons that 13,000 planned operations have been cancelled in the last two months alone?

Lord Kamall: The focus and priority for the next three weeks is on omicron and making sure that people get their boosters as quickly as possible. It is not only doctors who are involved: nurses, pharmacists and, incredibly, a number of civil servants are now taking part in that programme. For the next three weeks, the focus is on getting more jabs into arms.

Lord Sikka: My Lords, successive Governments have poached doctors from comparatively poor countries to meet the shortages here. As the Minister knows, it costs a vast amount of money to educate and train a doctor, so developing countries have been deprived of their talents. Will the Minister explain that, or give an undertaking that the Government will provide compensation to poorer countries for stealing their assets?

Lord Kamall: The Government follow strict ethical guidelines on international recruitment, in line with WHO guidance, which says we should not be taking nurses and doctors from countries and depriving their health services. But where countries have a surplus—a number of developing countries around the world actually train more people than they have a use for in the local system—they see it as a valuable source of income.

Lord Scriven: My Lords, it is not just a question of the total number of doctors but the number in certain specialisms where there is already a dearth of professionals. What are the Government doing to ensure that, as more doctors come on, they are particularly geared to specialisms where there is already a dire dearth of doctors?

Lord Kamall: When it comes to workforce plans, particularly in local areas where there is understaffing, we are very much focused on specialisms that are understaffed.

Lord Turnberg: My Lords, we are losing doctors more rapidly than we can train them, and it has been like that for a while. The average age at which a physician retires is now 58; it used to be 62. What are the Government doing to help doctors stay in post and to bring them back part-time after retirement to help the NHS?

Lord Kamall: As the noble Lord will be aware, there is a temporary measure to bring doctors back, without affecting their pensions, which lasts until 2024. We are looking into whether that should be continued, as well as increasing the number of training places.

Nepal
 - Question

Lord Harries of Pentregarth: To ask Her Majesty’s Government what progress they have made towards their commitments to providing (1) health services, (2) water and sanitation, and (3) access to justice, for marginalised communities in Nepal, including Dalits and Adivasis.

Lord Ahmad of Wimbledon: My Lords, the UK targets our development support at the most marginalised communities in Nepal, including Dalits, Adivasis, Janajatis and people with disabilities. The United Kingdom provides significant support to the Ministry of Health to strengthen systems and ensure universal health coverage, particularly for the most vulnerable. We provide £45.5 million in targeted security and justice assistance, and in 2021 we also repurposed our support to ensure that water, sanitation and health facilities reached 400,000 people, prioritising the most vulnerable in light of Covid.

Lord Harries of Pentregarth: I thank the Minister for his reply. The Dalits and Adivasis comprise about 14% of the population of Nepal, and they suffer the  same kind of extensive humiliations as they do anywhere. In theory, the constitution acknowledges the rights of Dalits, but nobody has yet been appointed to the National Dalit Commission that was set up, and although a National Human Rights Commission has been set up, there are no representatives from the Dalit communities. Will he please press the Government on these issues?

Lord Ahmad of Wimbledon: My Lords, I pay tribute to the noble and right reverend Lord’s work in his role as chair of the APPG for Dalits. I think there are some encouraging signs from Nepal. He will be aware that in 2017, when local elections took place, about 22% of those elected to official local government positions were from the Dalit communities, so there is some progress. But he makes a very valid point and of course we will continue to lobby on strengthening human rights, not just for the Dalit communities but for all vulnerable communities in Nepal.

Lord Lancaster of Kimbolton: My Lords, I declare my interest as Colonel Commandant of the Brigade of Gurkhas. I am very grateful to my noble friend for the 100% renewal of the WASH programme delivered by the Gurkha Welfare Trust, as I am for the donation of ventilators, other medical supplies and some vaccines by COVAX. When will we fulfil our duty of care to the 30,000 Gurkha veterans who live in Nepal, through a bilateral donation of vaccines to Nepal to enable them to be vaccinated as well?

Lord Ahmad of Wimbledon: My Lords, first, I pay tribute to my noble friend’s work and, indeed, that of others in your Lordships’ House who drew specific attention to the plight of Nepal during the crisis in the summer. I assure my noble friend that we continue to prioritise help through the COVAX Facility for Covid. Also, the UK recently made a bilateral donation of 131,000 doses of the AstraZeneca vaccine.

Lord Collins of Highbury: My Lords, Helen Grant, the Prime Minister’s special envoy on girls’ education, visited Nepal in October, and she met activist women and girls on education and climate change. Did that include representatives of the Dalit community, and did she use that opportunity to press the Government of Nepal to ensure that we leave no one behind and that everyone is included in dialogue on the future?

Lord Ahmad of Wimbledon: My Lords, on the specifics of my honourable friend’s meeting, I will certainly make sure that that was included and write to the noble Lord. On the more general point, in all our engagement—including on the importance of girls’ education and preventing gender-based violence—all communities, including the most marginalised, are of course included.

Lord Alton of Liverpool: My Lords, I urge the Minister to return to the question asked by my noble and right reverend friend Lord Harries of Pentregarth, specifically about the two bodies which have been established—the National Human Rights Commission and the National Dalit Commission—on which there  are no Dalits. Will he undertake to raise that specifically with the Nepalese Government and to ascertain why these constitutional promises have not been met? On the issue of Covid, what percentage of the 14% who are Dalits or Adivasis in Nepal have been vaccinated? What do we know about the number of fatalities that have occurred in line with the rest of the population? Is it not time that untouchability and caste were made history in the 21st century?

Lord Ahmad of Wimbledon: My Lords, as I have already made clear, I will follow up on the noble and right reverend Lord’s earlier point, specifically on representation. But I sought to illustrate that we are seeing some positive examples of inclusivity, albeit at a local level thus far. On the issue of the Covid-19 response, I can confirm that 24% of our support targeted particular vulnerable groups, including Dalits, Janajatis, Madhesi and Muslim minorities in Nepal.

Baroness Armstrong of Hill Top: My Lords, I am sure the Minister is aware of the SAHAJ programme—Strengthening Access to Holistic Gender Responsive and Accountable Justice; it is delivered by Voluntary Service Overseas in Nepal as part of the UK aid programme and has worked very successfully with hundreds of thousands of men and women and girls and boys. Many of those, particularly the women and girls, are from the Dalit community. Programmes such as this are in jeopardy if the Government do not sort out their UK aid funding. VSO found out about its funding after the last programme had ended. It needs to know that the money will be continued, and it needs to know in time so that it can work with its partners effectively in Nepal.

Lord Ahmad of Wimbledon: My Lords, I assure the noble Baroness that I am engaging directly with VSO on the priorities. I value it, and I am sure that all noble Lords acknowledge its valuable work. On the specifics of the programme in Nepal, I assure the noble Baroness, both as Minister for South Asia as well as Minister for civil society organisations, that I will look at that very closely.

Covid-19: PCR and Lateral Flow Test Providers
 - Question

Lord Scriven: To ask Her Majesty’s Government what due diligence they carry out on companies listed on GOV.UK, that offer travel PCR and lateral flow tests for COVID-19.

Lord Kamall: The private sector has stepped up extremely rapidly, and most of the tens of thousands of travellers have had an excellent and professional service. However, we do not tolerate any providers taking advantage of customers.  All providers in the PCR international travel market are required to meet robust minimum standards, and we remove those we identify as having fallen short of them. Since we launched the travel service, we have removed over 100 providers.

Lord Scriven: My Lords, for many people that is just not their lived experience. The approved supply list for the two-day PCR test on GOV.UK is fundamentally flawed. Many thousands of people either do not receive the test results within the two-day timeline or at all. Despite many people reporting these companies to NHS Test and Trace, they remain on the list as of today, making tens of thousands of pounds while undermining the public health effort. What will the Minister do to ensure that this kind of procedure stops?

Lord Kamall: It is important to distinguish between PCR tests if you are contacted by NHS Test and Trace and PCR tests for travel purposes. If you are contacted by test and trace, you are sent a PCR test for free. But when it comes to travel, the view is that the traveller should bear that cost rather than the taxpayer. After I saw this Question, I went on to one of these websites and tested it out for myself. As the noble Lord says, the price quoted is often not the first price. I have had a conversation with those that provide it, and they are looking at a number of different solutions.

Baroness Rawlings: My Lords, why can vaccines only be obtained through the National Health Service, while Covid tests valid for travelling can only be obtained privately?

Lord Kamall: I am not sure I completely agree with the premise of my noble friend’s question, but I will double-check. The decision had to be made that if people are contacted by test and trace, it is only right that they are sent a PCR test. But if they are travelling, should the taxpayer bear the burden of the cost of their PCR test, or should they? A number of travel companies are now recommending PCR tests for their passengers.

Lord Foulkes of Cumnock: My Lords, it is not just Matt Hancock and Randox, or Rupert Soames at Serco: a large number of these companies that have multimillion—even multibillion—pound contracts for testing have links with Tory members, MPs and Peers. Is this just a coincidence? Is it serendipity? Or is it something more sinister?

Lord Kamall: I suggest that if the noble Lord would like to take a PCR test before he travels, he goes through a number of price comparison websites and chooses the one he feels is more suitable for him.

Lord Cormack: My Lords, there are rumours circulating—more than rumours, I think—that we are running out of testing kits. Is that true? Can my noble friend give us some reassurance on that front?

Lord Kamall: I thank my noble friend for bringing that to my attention. I was in a meeting with my right honourable friend the Secretary of State for Health and Social Care as well as other Ministers today. We were told categorically that we have ordered many more tests to enable people to test more often.

Baroness Thornton: My Lords, there are hundreds of private test companies to choose from when you are heading abroad, and that is part of the problem. Which? carried out some mystery shopping in the autumn and revealed a list of companies that give the most reliable and best-value tests—I share that information with the House—and also the ones to avoid as being rip-offs and unreliable. Is the Minister aware of this consumer research? What notice will the Government be taking of the ones that Which? recommends not to use? Have they yet been removed from the Government’s list?

Lord Kamall: I thank the noble Baroness for making noble Lords aware of that particular comparison website—let me put it that way. We try carefully not to recommend particular private providers or comparison websites, but this market is developing, and there are lots of comparison websites out there looking at this market. As we start to have more testing and do more diagnoses at home, this market will develop.

Lord Bilimoria: My Lords, I was one of the first people in the country to call for lateral flow tests, going back to August last year, and I am delighted that the Government now provide these free to businesses and the public. Can the Minister assure us that these tests will continue to be made available free as we continue to fight this pandemic? Secondly, as president of the CBI, let me say that the aviation sector is suffering hugely. Is there a need for pre-departure PCR tests when we could use lateral flow tests?

Lord Kamall: Let me assure the noble Lord that there will be sufficient tests; and if you are contacted by test and trace, you will either be asked to take a lateral flow test or be sent a PCR test. But when it comes to international travel, we feel it is only right that the traveller or the company bears the cost. At the moment, travel companies are offering and recommending specific PCR tests.

Baroness Evans of Bowes Park: My Lords, the noble Baroness, Lady Brinton, wishes to speak virtually. I think this is a convenient point for me to call her.

Baroness Brinton: My Lords, the Minister has just had trouble responding to the Question from noble Lord, Lord Scriven, and from the noble Baroness, Lady Thornton, about the process used to review performance of the Government-approved travel PCR testing companies. Can I give him a specific example? TestnGo has a 76% “poor” rating on Trustpilot, with thousands of people not receiving their PCR tests and others not getting the results in two days. As the noble Lord, Lord Scriven, has said, many have reported this to test and trace, so why is it still on the Government’s list of approved suppliers?

Lord Kamall: I thank the noble Baroness for suggesting another price comparison website. There is an accreditation scheme, and every time companies are reported to the Government, we look at how to remove them. There is a four-stage process for UKAS accreditation, and sometimes when companies are reported, another one pops up.

Baroness Watkins of Tavistock: My Lords, can the Minister say what the average cost to the NHS of both a PCR and a lateral flow test is, so that that can inform people in relation to the cost in the private sector?

Lord Kamall: I do not have the exact numbers, so I will write to the noble Baroness. On loss-leading services, anything under £15 was removed because it was deemed that that was dishonest or underpriced.

Lord Naseby: Following on from that question, I remind my noble friend that, as far as I am aware, all the PCR tests are endorsed by Her Majesty’s Government, but the price varies from £60 to over £120. In that condition, if they are endorsed, will my noble friend talk to the companies concerned and decide on a recommended price level?

Lord Kamall: When I was discussing this with the people responsible for accreditation, they said that often a number of companies are reported to them and they look into them. Quite often companies will then be removed, but they can come back. The issue is that companies sometimes get provisional approval at the first stage while they are going through the full approval process. That will be reviewed in time.

Lord Harris of Haringey: My Lords, in answering the noble Lord, Lord Scriven, the Minister referred to the fact that 100 companies had been removed from the list, presumably by his department or NHS Test and Trace. He presumably monitors all of this, so could he tell us exactly how many complaints there have been and how many of such complaints are necessary before a company is removed?

Lord Kamall: I am sorry to disappoint the noble Lord; I do not personally monitor this, but I will get the figures and write to him.

Lord Watts: My Lords, can the Minister explain the wide difference in price from these companies? It seems to the general public that some are ripping clients off, but the Government do not seem to want to do anything about it.

Lord Kamall: One of the issues the Government have is that the GOV.UK website is pretty rudimentary. As this market develops over time, more and more people will look to private comparison websites—noble Lords have mentioned a few of them. It is also important to distinguish between the different types of PCR test. Some companies charge far more but offer a much quicker turnaround than those whose service might take a few days.

Viscount Waverley: My Lords, one might imagine that laboratories would give a reasonably consistent price. This is really all about consistency and fair pricing. That is the issue that needs to be taken into account, and I commend my Cross-Bench colleague for the point she made about the NHS. Given that the written word is often in the eye of the beholder, would it be helpful to have more flow chart-type messaging on the GOV.UK website? The perception is that what is on there is extremely complicated to understand.

Lord Kamall: The noble Viscount makes an important observation. When I looked at the website myself, I saw how confusing it was. When I discussed this with the people responsible, they said that they had changed it over time; for example, it now has minimum prices—one of the suggestions I made was that perhaps it should also have maximum prices. There is also the question of how you categorise, because there are different tests; some can be turned around in 24 hours, while others take a few days.

Business of the House
 - Motion on Standing Orders

Baroness Evans of Bowes Park: Moved by Baroness Evans of Bowes Park
That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 15 December to enable motions to approve affirmative instruments laid before the House under the Public Health (Control of Disease) Act 1984 to be moved before oral questions that day.

Baroness Evans of Bowes Park: My Lords, I beg to move the first Motion standing in my name on the Order Paper. The House will sit at 11 am on Wednesday 15 December to debate regulations about new Covid-19 restrictions. These two Motions simply make the necessary procedural arrangements for the House to sit early.
Motion agreed.

Business of the House
 - Motion on Standing Orders

Baroness Evans of Bowes Park: Moved by Baroness Evans of Bowes Park
That Standing Order 73 (Affirmative Instruments) be dispensed with on Wednesday 15 December to enable motions to approve affirmative instruments laid before the House under the Public Health (Control of Disease) Act 1984 to be moved, notwithstanding that no report from the Joint Committee on Statutory Instruments on the instruments will have been laid before the House.

Baroness Evans of Bowes Park: My Lords, I beg to move the second Motion standing in my name on the Order Paper.

Lord Robathan: My Lords, before we go any further, could my noble friend the Leader tell us when the third SI will be laid? I asked the clerks and the Printed Paper Office, but they said it is not there.

Baroness Evans of Bowes Park: I am afraid I do not know, but I will find out. We will message noble Lords as soon as this is over.
Motion agreed.

Animal Welfare (Sentience) Bill [HL]
 - Third Reading

Motion

Lord Benyon: Moved by Lord Benyon
That the Bill do now pass.

Lord Benyon: My Lords, I said at Second Reading that this Bill is our opportunity to build on the UK’s record as a world leader in animal welfare. Animal sentience is a matter of scientific fact and it is only right that it is recognised in UK law and properly considered in policy decision-making. I am therefore pleased to see the Bill progress towards becoming law, an outcome for which there is clear and unambiguous public demand.
It has been an honour to lead the Bill through this House. As your Lordships know, it is the first Bill that I have had the privilege of guiding through this House, and the experience has been an educational one. The House is known to offer particularly robust and careful scrutiny of proposed legislation, and I can certainly confirm that it has lived up to its reputation. While the hours of debate may have been long, they were also constructive and informative.
I thank noble Lords on all Benches for working constructively and coming forward with positive suggestions. I am particularly grateful to my noble friends Lord Moylan, Lord Mancroft, who I am pleased to see has risen like Lazarus from his sickbed to be with us today, Lord Marland, Lord Howard of Rising, Lord Forsyth, Lord Caithness, Lord Ridley, whose imminent departure from this House is a matter of great regret, Lady McIntosh and Lady Meyer. I am also grateful to the noble Lord, Lord Trees, whose understanding of these matters is second to none, the noble and learned Lord, Lord Etherton, the noble Earl, Lord, Kinnoull, and the noble Baronesses, Lady Deech and Lady Mallalieu. Finally, I thank all noble Lords who discussed the Bill with me, inside and outside the Chamber. The Bill, and the animal sentience committee’s draft terms of reference, are in better shape than they would otherwise have been as a result of your Lordships’ engagement.
In addition, I thank officials in my department for their many hours of work on the Bill, including the Bill manager, Katherine Yeşilirmak, and her colleagues Hannah Edwins, Jack Darrant, Phoebe Harris and Cathrine Hughes. I am also grateful to my private secretary, Lucy Skelton, and to Hannah Ellis in the Whips’ Office.
I was delighted to see noble Lords across the House support the amendment to include decapods and cephalopods in the Bill. There has been much interest in this issue, and our decision was fully informed by a robust research report.
I must also thank the noble Baronesses, Lady Hayman of Ullock and Lady Bakewell of Hardington Mandeville, on the Front Benches opposite, for their time and constructive engagement with the Bill. It is a better Bill for their involvement. I am also particularly grateful to my noble friends Lady Bloomfield of Hinton Waldrist and Lord Younger of Leckie, whose support and guidance has been indispensable over the past few months.
I am glad that my noble friend Lord Herbert of South Downs and I are united in, to use the words in his Motion, supporting measures to improve animal welfare. I have known and worked with him on these matters for a great many years, and I understand his commitment to animal welfare. I do not propose to revisit all the arguments made at earlier stages of the Bill, but I would like to take a moment to reassure my noble friend that the accountability furnished by the animal sentience committee will be proportionate, timely and targeted.
My noble friend has expressed concern that the committee would glue up government with its analysis and proposals. I respectfully disagree: if anything, I believe it will oil the wheels of the policy-making process. We have indicated that the committee should look to produce six to eight reports a year. It will have to select policy decisions very carefully, and the administrative burden that is created will be light. Furthermore, the committee is not empowered to make recommendations on the substance of policy decisions; its recommendations will be strictly limited to consideration of the animal welfare impacts of the policy decision. It is therefore difficult to see how the committee would hinder the business of government in the way that my noble friend describes.
I understand why my noble friend has asked about the need for two committees. To be clear, the animal sentience committee is the only new committee to be established. It needs to be referred to in statute to provide for the effective parliamentary accountability that we envisage. By comparison, the existing Animal Welfare Committee advises, rather than scrutinises, Defra and the devolved Governments of Wales and Scotland about particular animal welfare issues that have been remitted to it. Ministers are not required by law to respond to the points made in the reports published by the Animal Welfare Committee, which is not established in legislation. I hope this reassures my noble friend, and that he will be willing not to move his amendment. I beg to move.

Amendment to the Motion

Lord Herbert of South Downs: Moved by Lord Herbert of South Downs
At the end insert “but that this House, while strongly supporting measures to improve animal welfare, regrets the way in which the proposed Animal Sentience Committee is to be established”.

Lord Herbert of South Downs: My Lords, I draw attention to my positions in the Countryside Alliance, including chairman, which I have declared in the register of Members’ interests. I regret detaining the House. I appreciate that there is important business next on the Police, Crime, Sentencing and Courts Bill.  However, as the Animal Welfare (Sentience) Bill leaves the House, I feel that there are important issues that need to be addressed. I would like to make two points at the outset.
First, none of what I am going to say is an attack on my noble friend the Minister. He is a good friend and a good man who has been given the impossible job of defending a Bill about which many of us have considerable reservations, and has done so with unfailing grace and humour. I am genuinely sorry to differ from him on this measure. Secondly, every one of us in this House wants to promote animal welfare. I certainly do. I feel strongly that animals must be treated properly but, whatever the good intentions of those promoting the Bill, I fear that it is not a wise measure as drafted. In fact, if we take a step back, it is actually an incredible measure. It seriously proposes that the effect of any government policy on the welfare of animals may be considered by an unfettered statutory committee and that Ministers must respond to that committee’s reports.
When the Bill started, that measure applied only to vertebrates; now it applies to cephalopod molluscs and decapod crustaceans. That was one of the few amendments made to the Bill, and that was by the Government. At the height of a pandemic which has killed thousands of people and cost our economy billions, we have decided to devote time to passing a law to ensure that no government policy can hurt the feelings of a prawn.
The Government rejected every other amendment put to them. We pointed out that sentience is not actually defined in the legislation; apparently that does not matter. What matters is that Ministers must have regard to sentience, even if we do not know what it actually is. We asked for safeguards to ensure the expertise of the committee’s members. We were told that such protections were not necessary. We asked for constraints to the committee’s scope. We were told that limits to the committee’s unfettered remit were not necessary either. Crucially, we asked why the balancing provisions in the Lisbon treaty, which specifically exempt religious rites, cultural traditions and regional heritage, were not included and why the Bill goes so much further than the EU measure it claims to replace. We were told that this balancing provision was not necessary either. In fact, apparently no change was necessary.
The Government have been able to ignore every concern expressed, largely on this side, by relying on the kindness of strangers—uncritical support for the measures that would have guaranteed the defeat of any amendment. I wonder whether the Government will come to regret that.
I am sure that Ministers do not intend that this new committee will get out of hand. I am sure they intend to appoint sensible people to it. I am sure they believe their own rhetoric when they say that Ministers decide so they will resist the committee’s recommendations if necessary. This is of little reassurance when the Government have already capitulated in the face of a social media campaign to introduce the committee in the first place. It is like saying, “Don’t worry, we are going to make sure the burglar won’t take anything from your house, but we are going to let him in to  make helpful suggestions about your security”. This committee will set its own priorities. It will decide its own agenda. It will rove across government at will and demand answers to its recommendations. The Government may believe that they are answering public concern by setting up the committee in this way, but I fear they are making a massive rod for their own back.
This measure departs from the usual practice of taking careful and specific steps to ensure animal welfare by injecting a broad and ill-defined principle into our public administration. The danger is that, in doing so, it will effectively if unwittingly hand an institutional footing to the animal rights agenda. We are giving leverage and power to that single-issue ideology, which can be uncompromising and extreme, without thinking through the consequences.
We are trying to beat a mutating virus. We are trying to level up, to build back better. We need Government to take better decisions, and more quickly. We need to get things done faster, yet we are putting in place a barely constrained mechanism which is simply bound to glue up government. I am afraid that I differ from my noble friend on that. At best, even with sensible people in place, the committee will put spanners in the works because frankly that will be its job. It will make it harder for Ministers to deliver, to take difficult balancing decisions, which they sometimes must, or to ignore populist sentiment. At worst, without the necessary safeguards in place, the committee risks becoming a Trojan horse, used especially to attack wildlife management farming or the well-being and way of life of our rural communities. We know that this is a real risk because the animal rights agenda is in plain sight, and because its proponents are already incessantly abusing judicial review to force government to do its will.
It is usually this House which provides a robust check on measures propelled by populist wins, yet we have passed the Bill with no amendment, except to extend its scope to beasts such as cuttlefish. Some noble Lords may remember that, 30 years ago, it was only the sober intervention of this House which prevented the then Dangerous Dogs Bill from inadvertently making it a strict liability imprisonable offence for a dog to cause injury by accidentally knocking someone off their bicycle. That Bill had foolishly been driven through all its Commons stages in a single day, but today we are showing ourselves to be more inclined to bend without sufficient thought to populism, and now it will fall to Members of the House of Commons to address the deficiencies in this proposal.
We all want to advance animal welfare, but the sentience provisions in the Lisbon treaty had little or nothing to do with the succession of admirable legislation which for over a century has been passed by this Parliament. In fact, with Brexit, we have the freedom to pass laws to protect animals which would not have been possible before—to address puppy smuggling, for instance. Even before this sentience Bill has been passed, other government Bills to protect animals have been introduced or announced, which only goes to prove that this Bill, creating this committee in this way, is not necessarily to protect animals.
I have offered these remarks in the hope that even as the Bill leaves this House, there is still a chance that its serious deficiencies will be addressed and that we will return to focusing on specific workable measures to improve the welfare of animals in ways which we all want and can all support. I beg to move.

Lord Robathan: My Lords, I pay tribute to my noble friend the Minister who, with good humour throughout, has defended what is frankly almost indefensible. He has done extremely well, and I hope that he is congratulated by the higher ranks of the Government. I associate myself entirely with the excellent points made by my noble friend Lord Herbert. I will not repeat them, but I will repeat that this is a shockingly bad piece of legislation which should be an embarrassment to the Government.

Baroness Mallalieu: My Lords, I remind the House of my interests as a member of the RSPCA and president of the Countryside Alliance and the Horse Trust. I too thank the Minister for his patience and courtesy during the passage of this Bill. Given the opposition from parts of the House, this cannot have been an unalloyed pleasure for him.
It gives me no pleasure to support the amendment tabled by the noble Lord, Lord Herbert, but I must. I cannot understand how a Government who were elected in no small part promising to reduce bureaucracy, especially that which came from Europe, can have taken the wholly uncontroversial subject of putting animal sentience on the statute book, something which nobody would disagree with, and now seem bent on turning it into a textbook bureaucratic nightmare.
When the former Master of the Rolls, the noble and learned Lord, Lord Etherton, told us during the passage of the Bill that it creates a magnet for judicial review; when the foremost vet in this House, the noble Lord, Lord Trees, who supports the Bill, tells us that its scope needs definition and its focus sharpened on to future policy decisions; when the former Leader of the House, the noble Lord, Lord Strathclyde, the former leader of the party opposite, the noble Lord, Lord Howard, and many others, tell the Government that they need to think again, yet they resist and reject all amendments, save for a small number of government ones, it makes me wonder whether this House has actual value as a scrutinising House when they have the comfort of a large majority in another place and know that they are able to push defective Bills through almost unamended there.
The Bill stirs up trouble for the future, not just for this Government but for future Governments. I hope that those who come to consider it in another place will have more flexibility to knock it into shape, because it surely needs it.

Lord Mancroft: I start by thanking my noble friend Lord Herbert for taking the trouble to move his amendment today and giving us an opportunity to say a few words in the dying moments of the Bill. I also apologise to your Lordships for my failure to move my  amendments last week on Report. As my noble friend on the Front Bench said, I was knocked over by Covid, but whether I jumped up like Lazarus I am not entirely sure. I think the reason that I am back so rapidly is that my wife was sick of having me about the house, but I am awfully glad to be back in your Lordships’ House anyway.
As the noble Baroness, Lady Mallalieu, just said, this Bill introduces the concept of sentience into English law for the first time, despite the fact that it has been the basis for 150 years of very sound animal welfare legislation, so you might wonder why we need to put it on the statute book today. I suggest we probably do not. It also sets up a new animal welfare committee—the animal sentience committee—despite the fact that we have three very good committees looking at animal welfare at the moment, each of which could have fulfilled the tasks set for this committee, so you might wonder why we want this.
As the noble Baroness also said, this is a revising Chamber, except that the Government have chosen to ignore all the suggestions made by Members of this House on all sides, as she said: the noble Lord, Lord Trees, whose knowledge of veterinary science can hardly be equalled; the noble Baroness, Lady Deech, who I do not think is in her place today, but who put forward some very important points; and the noble Baroness, Lady Mallalieu, herself, on the other side of the House, who made very reasoned amendments and suggestions to this House—as everybody did—none of which were politically based at all.
I have done as much research as I can, and I believe that this is the first statutory committee set up by statute which has no statutory terms of reference. The Government recognised this when it was raised in Committee, and so between Committee and Report they introduced 27 pages of terms of reference for the committee that they propose to set up. But they are not statutory; they can be altered by any official or Minister at the stroke of a pen. They have absolutely no basis in law; they are effectively legislatively worthless.
The Government have argued throughout that this is a minor measure of very little significance—in which case, why have your Lordships been bothered with it for four long, paralysingly boring days? I do not think it is a measure of little significance. Like my noble friend Lord Herbert, I think it is a potentially very dangerous measure that will come back to bite this Government—or, more particularly, future Governments—as the years go by. This House will regret the fact that we have passed it without any amendment and have allowed ourselves to be rolled over.
There is little support for this measure on the Government Benches. I have looked very carefully, but I have seen very little support for it on the Opposition Benches. In fact, I have seen very little support for it anywhere except on the Front Benches, where a rather unsavoury deal has been stitched up to allow this to go to the other place without a single amendment, despite the care and attention which your Lordships have given the Bill. It is the tradition in this House that we send Bills to the other place with good will; we wish them a fair wind. I do not wish this Bill a fair wind. I hope the other place does the duty that we should have  done and changes it very considerably or, better still, destroys it completely. Failing that, I hope that a sensible Secretary of State in future fails to enact it.

Earl of Caithness: My Lords, I, too, support what my noble friend Lord Herbert said. I underline a point made by my noble friend Lord Mancroft. This sets a parliamentary precedent in the appointment of statutory committees which could have huge ramifications for future Bills. The Government will be able to say that we do not need to set out the statutory terms of reference for the committee because we already have the precedent of this Bill.
I am sorry that my noble friend Lord Benyon has had to take this Bill through the House. It should have been another Minister. My noble friend was absolutely right when he said that he has had to drive it through the House. He has not looked right; he has not looked straight ahead. He has looked left. He rightly paid tribute to his co-driver, the noble Baroness, Lady Hayman of Ullock.
Finally, I am disappointed that I have not yet received a reply from my noble friend to the questions I posed on Report. I hope that he will expedite those.

Lord Etherton: My Lords, I, also, support the amendment of the noble Lord, Lord Herbert. Even at this late stage, it is worth emphasising that the absence of any restriction on the purview of the sentience committee will mean that no recreational activity, cultural tradition, regional heritage or religious rite—in its practice or observance—is safe from scrutiny by the committee.
In Committee, the Minister was good enough to give some reassurances about the long-standing practices of religious slaughter in this country going back hundreds of years. The trouble is that the only policy that has been disclosed means that it will be open to any future Secretary of State, Minister or future Government to take a different view. Unlike under the Lisbon treaty, there is absolutely nothing to restrain them from doing so.
As I said on Report, if the Government decided not to follow a recommendation from the sentience committee on contentious issues relating to animal welfare, it would inevitably give rise to the potential for judicial review and challenge. You cannot stop people bringing a judicial review. The Government may be confident that they would win, but these will not be straightforward matters. One will have to consider whether the sentience committee has acted within its statutory rights, whether or not the evidence sufficiently supports what the committee recommends and whether the Government have sufficient other factors which outweigh the recommendation of the committee. I agree that this Bill is going to come back to bite badly.

Lord Cormack: My Lords, I will speak very briefly. I associate myself totally with the brilliantly moved amendment from my noble friend Lord Herbert of South Downs. He encapsulated the folly of this legislation, from which I have kept myself apart because I was, frankly, so appalled to think that a Conservative Government could introduce such a piece of legislation.
My noble friend Lord Herbert was exactly right in all he said, as was my noble friend Lord Mancroft. It is a joy to see him back. I hope that he has made a full recovery. These are people who know about the countryside. Nobody could have put it better than my noble friend Lord Herbert when he asked why Parliament was consuming itself with consideration for the welfare of the prawn when, all around, people are in danger from a deadly virus. It shows a completely warped sense of perspective and priority of which I feel deeply ashamed. If my noble friend presses his amendment to the vote—which I hope he will—he will have my unreserved support.

Baroness Fox of Buckley: My Lords, I also associate myself with and will support the regret amendment. I have not been able to be at the discussions on the Bill, but I followed them very closely in Hansard because it is an issue I am interested in. There is one point to note: the noble Lord, Lord Herbert of South Downs, made a brief reference to populism. I want to speak on behalf of the public, who might well support animal welfare, but I can tell you that if you talk to anybody outside this House and tell them what the Bill contains, they are equally appalled. The irony is that it is not fair for anyone to try to say that, as a consequence, the public might somehow get the blame for this badly formed, badly written, badly drafted, philosophically ridiculous and anti-human Bill. I do not think that is fair. Although I am sure all of us are concerned with animal welfare, the Bill is not about preserving the welfare of animals. It actually takes us into very dark, deep territory, and a bureaucratic nightmare. It is completely anti-democratic and the public would be appalled if they read the debates in Hansard in great detail.

Lord Hannan of Kingsclere: My Lords, I support my noble friend Lord Herbert of South Downs and my noble and indestructible friend Lord Mancroft. I asked at Second Reading: to what problem is this legislation a solution? I listened carefully through Committee and Report and I did not get an answer. I am afraid that I am reluctantly thrown back to the conclusion that this was a Bill brought forward in response to a fake press release—that, at the Dispatch Box in another place, the Minister was panicked into promising legislation in response to a false story to the effect that Conservatives had voted to say that animals were not sentient. Declamatory law of this kind invites unintended consequences. It is almost a textbook definition of how not to legislate. It does not reflect well on our lawmaking process that this House has been prevented from exerting its ameliorating and scrutinising function. I hope that that function will be taken up in another place.

Baroness Bakewell of Hardington Mandeville: My Lords, I listened carefully to the noble Lord, Lord Herbert of South Downs. I fear I do not agree that this Bill was a waste of parliamentary time. A large number of Bills are coming forward during the pandemic that are not health related, but it is important that legislation moves forward and does not get bogged down in Covid. Similarly, I listened to the comments of the noble Lord, Lord Hannan of Kingsclere, who, unfortunately, was not able to be here at the beginning  of the debate. I live in a rural community and support the rural way of life, and I do not feel the Bill threatens either the ethos or the practical way of life in rural communities. This is overstated.
I congratulate the Minister on his remarks and on eventually getting this very short but important Bill to the point of being able to pass it on to the other place. I did not envisage at the start of the process that it would be so controversial in some quarters of the Government Benches, who, in their own words, have attempted to paralyse the House with boredom.
I thank the Minister for his time and that of his officials in providing briefings along the way, and for his patience in dealing with the many amendments and queries that came forward. I also thank the noble Baroness, Lady Hayman of Ullock, for her time and assistance in helping to steer the Bill forward. It is always better when Front Benches are united in moving a Bill forward.
The amendments that have been accepted have improved the Bill. It will be interesting to see how the Bill is received in the other place and whether it will make any further amendments. No doubt it will be heavily lobbied by the spokespeople this afternoon. I support the thrust of the Bill and look forward to working with the Minister on future legislation.

Baroness Hayman of Ullock: My Lords, on these Benches we have listened to the speeches from the noble Lord, Lord Herbert of South Downs, and other noble Lords, but we cannot support the amendment. I am sure noble Lords are not surprised to hear that. I will not go into any details. At Second Reading, in Committee and on Report, we discussed in depth and at length exactly the same issues as we have today, and I am fairly confident that any noble Lord present at any of those debates understands fully my feelings on these issues.
The vast majority of Labour Back-Benchers support the Bill. There is no Front-Bench stitch-up, but it is good when Front Benches can work together to get what I consider to be good legislation through the House. Members may disagree with me, but that is my opinion.
On that note, I thank the Minister for his support in understanding the Bill, listening to opposition concerns at the early stages and bringing forward the terms of reference, for example, and other amendments that have made the Bill much better—including the amendment on decapods and cephalopods that I first put forward in Committee. I also thank the noble Baroness, Lady Bakewell of Hardington Mandeville. As I said, and as she said, it is important that we can all work together across the House to make a Bill better.
I will not say anything further; it is going to be a very busy day today. I thank the officials for all their time. We support the Bill and believe it is better than when it first arrived in this House. I wish it much luck in the other place.

Lord Benyon: My Lords, I thank my noble friend Lord Herbert for his contributions to today’s proceedings and earlier debates on the Bill. I have  previously addressed at length a number of the points he raised, so I do not intend to detain the House long. He made an incredibly good speech, and some of his points struck home—I felt a bit like that painting of St Sebastian.
The weakest argument he put, echoed by my noble friend Lord Cormack, seemed to suggest that this House cannot hold two thoughts in its head at the same time. Of course, the priority of this House, the Government and all of us is to deal with the pandemic, but the idea that you cannot produce legislation on any other subject, which is the logical conclusion of his argument, is one that I am afraid I do not agree with. But he made other very good points.
I suggest to the noble Baroness, Lady Mallalieu, that this concept of animal sentience was on the statute book; we had it under Article 13 of the Lisbon treaty. The debate, which will continue in another place, is about the degree to which we transpose that. I understand the points she made.
I make an absolute assurance to the noble Baroness, Lady Deech, who is not here. The noble and learned Lord, Lord Etherton, made a very good point, and I respect him and his knowledge. On the point about judicial review, we have done all we can to limit the duties that a Minister has to abide by. That is where judicial review really hurts Ministers—if they fail to follow a duty in the Bill—but I absolutely concede that organisations will continuously try to judicially review the Government, on this legislation and elsewhere. The question is: will it be successful? Will it be permitted to be taken forward? Just the week before last, an organisation wanted to take the Government to judicial review and was refused by the courts.
Finally, on religious rites, I made a promise on Report and continue to make that point. The noble Baroness, Lady Deech, the noble Lord, Lord Sheikh, and others made genuine points about concerns in the communities they come from or sought to represent in their words on this Bill. I and the Government take these concerns really seriously and want to give them every assurance that the Government’s policy remains to support them on these matters of religious importance and on how they wish to have animals slaughtered. We will make officials and Ministers available to give those added reassurances.
I again thank all those involved to date in the Bill’s passage and hope my noble friend will be persuaded not to push his amendment.

Lord Herbert of South Downs: My Lords, this has been a good airing of the issues; we have all said our piece. I have no wish to try the patience of the House, which wishes to get on to other matters, any longer. I hope that Members of Parliament will heed what has been said, and that in due course we will have an opportunity to consider amendments that they make, so that this House performs the job of being a revising Chamber—because the Bill has not so far been revised at all. With that, I beg leave to withdraw my amendment.
Amendment to the Motion withdrawn.
Bill passed and sent to the Commons.

Police, Crime, Sentencing and Courts Bill
 - Report (2nd Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee and 7th Report from the Constitution Committee

  
Clause 12: Preventing and reducing serious violence

Amendment 15

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
15: Clause 12, page 13, line 12, after “includes” insert “, in particular—(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statementThis amendment clarifies that “violence” for the purposes of Chapter 1 of Part 2 includes domestic abuse and sexual offences.

Baroness Williams of Trafford: My Lords, as I set out in Committee, the Government are absolutely committed to tackling violence against women and girls. In July this year, we published a cross-government Tackling Violence Against Women and Girls strategy, which set out a range of actions to help ensure that more perpetrators are brought to justice and face the full force of the law, that we improve support to victims and survivors, and, ultimately, that we work to prevent these crimes. Our complementary domestic abuse strategy will be published early next year. However, there is always scope to do more. In Committee, I undertook to consider further an amendment tabled by my noble friend Lady Bertin, which sought to expressly provide in the Bill that “violence” for the purposes of the serious violence duty includes domestic abuse, domestic homicide and sexual violence.
I reiterate that the draft statutory guidance for the serious violence duty already makes it clear that specified authorities are able to take into account any form of serious violence that is of particular concern in a local area in their strategies. The guidance specifies that this could include, for example, domestic violence, alcohol-related violence, sexual exploitation, modern slavery or gender-based violence. We have been clear throughout that we believe that specified authorities are best placed to determine what the priorities should be for their area based on the local evidence. However, we agree that there is benefit to making it absolutely clear in the Bill that domestic abuse and sexual offences, perpetrated against adults or children, are included within the meaning of “violence” for the purposes of the serious violence duty. These government amendments do just that. To ensure that clarity, the amendments include definitions of “domestic abuse”, importing that contained in Section 1 of the Domestic Abuse Act 2021, and of “sexual offences”, utilising the list in Schedule 3 to the Sexual Offences Act 2003, subject to certain appropriate modifications.
I commend my noble friend and Nicole Jacobs, the domestic abuse commissioner, for their campaigning on this issue. These amendments are a tribute to their work and I commend them to the House.

Baroness Bertin: My Lords, I am delighted to welcome this group of government amendments. Making the change to explicitly recognise that domestic abuse and sexual offences are included in the Bill’s definition of violence really matters. It sends the signal loud and clear that these destructive and damaging crimes cannot just be swept under the carpet, ignored or tolerated, and that not tackling them is no longer an option.
The omission in the original legislation risked undermining very real progress and momentum in our fight against these pervasive offences, and the Government deserve real credit for recognising that and making this change. I thank again my noble friend the Minister, who does a huge amount on the Floor of this House but also an awful lot behind the scenes. These amendments may seem very easy to get over the line but they are not, and I know that she did a huge amount behind the scenes to ensure that that happened. I also thank the Home Secretary, because I know that she gets this and that she cares. The continued political leadership in this area from both of them is greatly needed if we are to continue making this kind of progress, so I thank them for that. I echo what my noble friend the Minister said about the domestic abuse commissioner and her dedicated team. If there was a blueprint of how to put together a brilliant team that supports so many important changes that have to be made, hers is that blueprint, and that team deserves huge credit today.
If done properly, this change will make a fundamental difference to how we tackle these crimes; putting prevention front and centre is the only way in which we can hope to be making different speeches in 10 years’ time. These amendments may be simple on the face of it, but the reality on the ground is very complex, and it is vital that the accompanying guidance gives local authorities the best chance of success.
On the guidance more broadly, I want to make a couple of points. I hope that the Home Office will continue to work with the domestic abuse commissioner’s office, as well as sector specialists and violence reduction units, which are already making these changes on violence against women and girls, domestic abuse and sexual offences—notably, in Nottingham and London—to make sure that the detail of best practice is properly communicated and effectively rolled out. One concern that I still have is that the guidance still refers local authorities back to the serious violence strategy, although the strategy still makes no reference to domestic abuse or sexual offences. Therefore, the guidance should be beefed up to help that omission.
The monitoring of the duty will also be vital. I would welcome close scrutiny from the Home Office to understand why any areas did not include these crime types, when we know how prolific they are nationally. I would also welcome greater involvement from the HMICFRS in responding to the new duty and how it is working in relation to these offences.
Briefly and finally, I want to talk about stalking. I absolutely accept the omission of stalking in this amendment, although reluctantly. However, does my  noble friend the Minister agree that much more urgency and joined-up thinking needs to be applied to this crime? There is still a huge gap in understanding across the entire criminal justice system, from policing to the judiciary. The ratio of victims to convictions is absolutely wrong. We know that approximately half of stalking-related cases are perpetrated by a current or ex-partner. Could she clarify and confirm that ex-intimate partner-related stalking, such as domestic abuse-related stalking, is implicitly understood and intended to be included in the duty?
Given that the other half of stalking cases are stranger cases, I very much believe that the spirit of this duty should extend to all forms of stalking. It will therefore be essential to ensure that specific and robust instruction on the nature of stalking and the types of interventions needed to tackle it are included in the guidance. In particular, I would welcome an explicit reference to MASIP, a multi-agency approach to managing the risk and reducing reoffending by stalking perpetrators. Not enough local authorities or police forces use that approach, but it does work—I have witnessed it myself in the Met team. It helps front-line officers to understand what they are dealing with. There are experts there, including potentially mental health experts, and it is an important new approach to this crime.
All in all, today is very welcome, and I hope that it gives victims hope and reassures them that their voices are beginning to be heard.

Baroness Jolly: My Lords, I join others in thanking the Minister for bringing forward these amendments. I congratulate the noble Baroness, Lady Bertin, on securing this important concession to the Bill.
Last Wednesday, we had a really well-argued and informed debate. It is worth taking a couple of minutes to look at the recent history of this issue. Going back to coalition times, when Theresa May was Home Secretary, she had weekly meetings around a table with women from every department. She challenged them on what they were doing in the department and then asked them the following week what had happened, so she really kept the pot boiling. As a result, the coalition Government published the first call to end violence against women and girls just after they were formed in 2010. Activity carries on: my honourable friend Wera Hobhouse, through a Private Member’s Bill, introduced a new offence for upskirting. However, offences for stalking, controlling or coercive behaviour, and so-called revenge porn should also follow.
While I regret that my noble friend Lady Brinton was unable to persuade the Minister to include stalking in the definition of serious violence, we welcome the government amendment before us today on violence, particularly sexual violence. Violence is not acceptable in any circumstances, but violence by men towards women and girls is completely unacceptable. As many noble Lords said during debates on this issue in Committee, it is vital to have a multi-agency public health approach to prevent domestic abuse and sexual violence.
Including domestic abuse and sexual violence in the definition of serious violence will ensure that local areas properly take account of this within their strategies and work in a joined-up way to address and prevent these crimes. The setting up of local integrated care systems as a result of the Health and Care Bill, which is before your Lordships’ House, might be a useful first provider of support for families affected. In the Minister’s response, will she please outline the initiatives that the Government will implement, not only to support the families involved, but also the perpetrators of the crimes?

Lord Rosser: My Lords, as the Minister said, government Amendment 15 clarifies that violence for the purposes of Part 2, Chapter 1 includes domestic abuse and sexual offences. We very much welcome these government amendments, the object of which has been a key issue for these Benches. It is a hugely important change to the Bill and an example of what can be achieved by this House, and indeed by Parliament as a whole, through proper scrutiny.
I too pay tribute to the noble Baroness, Lady Bertin, and to Nicole Jacobs, the domestic abuse commissioner, for the key roles that they played on this issue. I also pay tribute to my honourable friends Sarah Jones MP and Jess Phillips MP who began a campaign for this change when the Bill arrived in the Commons in March. This has been a cross-party, cross-House effort to ensure that these extremely serious, high-harm types of violence are recognised as such and are prioritised.
It has been mentioned that, although these amendments add domestic abuse and sexual violence to the definition, they do not specifically include stalking. Stalking that involves domestic abuse and sexual offences would be covered by the terms of these government amendments, which provide for the inclusion of violence against women and girls in the definition of serious violence. Of course, that does not include all cases of stalking. I hope and expect that we will hear from the Minister at some stage during the remaining stages of this Bill what the Government are doing to change the way we respond to stalking across the board.

Baroness Williams of Trafford: My Lords, I thank my noble friend Lady Bertin for her comments. I share entirely my noble friend’s commitment to ensuring that best practice in this area is properly communicated to duty holders. That is what will make it effective. I look forward to working with the domestic abuse commissioner’s office and wider stakeholders to develop the statutory guidance which will be subject to public consultation following Royal Assent. We intend to develop options and include detail on monitoring progress in our statutory guidance. In addition, specified authorities will be requested to keep their strategy under review. PCCs will also have a discretionary power to monitor performance, and routine inspection programmes undertaken by individual inspectorates in future may also consider the organisational response to local serious violence issues.
As my noble friend and others will know, the statutory guidance under Clause 18 already includes references to sexual offences, domestic abuse and gender-based violence. In updating the guidance ahead of the consultation, we will explore whether we should revise  it to make it clear to specified authorities that they should consider violence against women and girls, including domestic abuse and sexual offences, in determining what amounts to serious violence in their areas.
In terms of stalking, we are very clear that the reference to domestic abuse to be added by the government amendments will encompass stalking in so far as it takes place in a domestic abuse context. Noble Lords will know that while many stalking offences take place in a domestic abuse context or involve violent behaviour, it is not the case in all instances. We have not expressly set these out in the Bill because we are seeking to avoid an exhaustive list of crime types, partly to allow local areas to take account of new and emerging forms of serious violence as they develop and are identified, and partly to recognise the geographical difference in the prevalence of these types of serious violent crimes.
As I have said, the draft statutory guidance for the duty sets out that there is flexibility for local areas to take account of their evidence-based strategic needs assessment and include in their strategy actions which focus on other related types of serious violence, including gender-based violence, which includes all forms of stalking as well as many other forms of violence against women and girls. We can look to make that clearer in the next iteration of the guidance, which we will be consulting on, as I have said. This is a view shared by the domestic abuse commissioner, and I put on record—following my noble friend’s thanks—my thanks to her for her continued engagement in this area.

Lord Hayward: My noble friend referred to sexual violence against women and girls. Can I clarify that this legislation actually covers all aspects of sexual abuse and stalking, not just that against women and girls?

Baroness Williams of Trafford: I am glad my noble friend has mentioned that. We have said right from the outset that it covers both sexes, but this violence is predominantly meted out to women and girls; that is why noble Lords sometimes question this. But, of course, anyone who is a victim of domestic abuse or serious violence is captured by this.
The noble Baroness, Lady Jolly, asked me about the initiatives we have in place. We have tripled the funding we provide to the National Stalking Helpline, run by the Suzy Lamplugh Trust, this year. The additional funding is enabling the trust to answer more calls and expand its advocacy service. I set out in Committee the other actions we are taking to tackle stalking, and I refer the noble Baroness to those comments. Our forthcoming domestic abuse strategy will include stalking as well.
On that note, I hope that I have answered my noble friend’s questions and those of other noble Lords. I conclude by thanking my noble friend and the commissioner, and I beg to move.
Amendment 15 agreed.

Amendments 16 and 17

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
16: Clause 12, page 13, line 14, at end insert—“(3A) In subsection (3)(a)(ii), “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual  Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(3B) In determining for the purposes of subsection (3A) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statementThis amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 13, line 12 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.
17: Clause 12, page 13, line 18, leave out “any offence” and insert “the offence (if any)”Member’s explanatory statementThis amendment modifies the reference in Clause 12(4) to any offence involved in violence to which Chapter 1 of Part 2 applies so that it is clear that such violence may not involve an offence.
Amendments 16 and 17 agreed.

  
Clause 14: Involvement of educational, prison and youth custody authorities
  

Amendment 18 not moved.

  
Clause 15: Disclosure of information

Amendments 19 to 21

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
19: Clause 15, page 15, line 41, leave out “a disclosure of information that”Member’s explanatory statementThis amendment and the amendments in the name of Baroness Williams of Trafford at page 15, line 41, page 15, line 42 and page 15, line 45 have the effect that Clause 15 does not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.
20: Clause 15, page 15, line 41, at end insert—“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
21: Clause 15, page 15, line 42, at beginning insert “a disclosure of information that”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
Amendments 19 to 21 agreed.
Amendment 22 not moved.

Amendment 23

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
23: Clause 15, page 15, line 45, at beginning insert “a disclosure of information that”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
Amendment 23 agreed.
Amendments 24 and 25 not moved.

  
Clause 16: Supply of information to local  policing bodies

Amendments 26 to 29

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
26: Clause 16, page 16, line 22, after “that” insert “is held by the person to whom the request is made and that”Member’s explanatory statementThis amendment limits the information that may be requested by a local policing body under Clause 16 to information held by the person to whom the request is made.
27: Clause 16, page 16, line 35, leave out “a disclosure of information that”Member’s explanatory statementThis amendment and the amendments in the name of Baroness Williams of Trafford at page 16, line 35, page 16, line 36 and page 16, line 39 have the effect that Clause 16 does not require the disclosure of patient information or the disclosure of personal information by a health or social care authority.
28: Clause 16, page 16, line 35, at end insert—“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
29: Clause 16, page 16, line 36, at beginning insert “a disclosure of information that”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
Amendments 26 to 29 agreed.
Amendment 30 not moved.

Amendment 31

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
31: Clause 16, page 16, line 39, at beginning insert “a disclosure of information that”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
Amendment 31 agreed.
Amendment 32 not moved.
Amendments 33 and 34 not moved.

  
Clause 17: Directions

Amendment 35

Lord Paddick: Moved by Lord Paddick
35: Clause 17, leave out Clause 17Member’s explanatory statementThis removes the provisions enabling the Secretary of State to give directions to require compliance with the serious violence duty.

Lord Paddick: My Lords, I indicated on Wednesday that I would divide the House on leaving out Clause 17, so I wish to test the opinion of the House.
Ayes 83, Noes 183.

Amendment 35 disagreed.

  
Clause 18: Guidance

Amendment 36

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
36: Clause 18, page 17, line 37, at end insert—“(4) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statementThis amendment requires guidance from the Secretary of State relating to Chapter 1 of Part 2 to be laid before Parliament.
Amendment 36 agreed.

  
Clause 19: Amendments to the Crime and Disorder Act 1998

Amendments 37 to 39

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
37: Clause 19, page 19, line 7, after “includes” insert “, in particular—(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statementThis amendment clarifies that “violence” for the purposes of Chapter 1 of Part 1 of the Crime and Disorder Act 1998 includes domestic abuse and sexual offences.
38: Clause 19, page 19, line 12, at end insert—“(1ZA) In the definition of “violence” in subsection (1) “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(1ZB) In determining for the purposes of subsection (1ZA) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statementThis amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 19, line 7 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.
39: Clause 19, page 19, line 18, leave out “any offence” and insert “the offence (if any)”Member’s explanatory statementThis amendment modifies the reference in section 18(1B) of the Crime and Disorder Act 1998 to any offence involved in violence to which Chapter 1 of Part 1 of that Act applies so that it is clear that such violence may not involve an offence.
Amendments 37 to 39 agreed.

  
Clause 22: Index of defined expressions

Amendments 40 and 41

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
40: Page 20, line 32, at end insert—health or social care authoritysection 9(9)”  Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 12, line 11.
41: Page 20, line 33, at end insert—“patient informationsection 9(9)personal informationsection 9(9)”Member’s explanatory statement This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 12, line 11.
Amendments 40 and 41 agreed.

  
Clause 31: Guidance

Amendment 42

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
42: Clause 31, page 27, line 7, at end insert—“(3) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statementThis amendment requires guidance from the Secretary of State relating to Chapter 2 of Part 2 to be laid before Parliament.
Amendment 42 agreed.

Amendment 42A

Lord Ponsonby of Shulbrede: Moved by Lord Ponsonby of Shulbrede
42A: After Clause 35, insert the following new Clause—“Domestic homicide reviews(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””

Lord Ponsonby of Shulbrede: My Lords, the new clause introduced by Amendment 42A seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in the circumstances outlined in Section 9 of the Act. The new clause also aims to improve data collection methodologies around domestic homicide reviews.
My noble and learned friend Lord Falconer of Thoroton moved this amendment in Committee. The  purpose of retabling it is to get a response from the Government. A letter was promised but none has been received as far as I am aware.
In preparing for this short debate, I reread the 2016 Home Office report on domestic homicide reviews. As the Minister will be aware, some strong themes emerged from that report, including the importance of record-keeping by the police and a multi-agency approach. Another particular theme was the need for GPs to keep records of people who reported domestic abuse.
In moving his amendment in Committee, my and learned noble friend asked three questions that I shall briefly repeat. First, it is difficult to see in Section 9 of the 2004 Act whether there is an obligation in every case for there to be a domestic homicide review. We think that there should be. Can the Minister confirm the Government's position on this question? Will she consider legislating to ensure that there is a review in every case?
Secondly, my noble and learned friend asked about centralising the recording of the review’s findings. Clearly, this would be helpful in learning lessons from the reviews, but can the Minister talk about the centralising of the domestic homicide review findings? The third question was about the domestic homicide sentencing review, which I understand was commissioned on 9 September this year. I understand that Clare Wade QC has been instructed on this matter. What are the terms of reference of this review? When is it expected to report? What do the Government expect will be done with its recommendations?
We believe that the 2016 report was a good one and should be built on. I look forward to the Minister’s response to the questions my noble and learned friend raised, which I have repeated in moving this amendment.

Lord Paddick: My Lords, if domestic abuse is now included in the serious violence duty—and there is no more serious violence than murder—can the Minister say how the Government can resist this amendment, which we support?

Lord Carlile of Berriew: My Lords, if I may just say a few words in support of this amendment, which was moved with such clarity by the noble Lord, Lord Ponsonby, two points seem to me to arise. The first is that if the reviews are held in a centralised way, they will be more efficient. There will be less of a postcode lottery when it comes to the review taking place. Secondly, and most importantly, if social services, medical services, the police and others know that there will be a review in every case in which there is murder as a result of a domestic situation, they will take greater care. We know that that has not, unfortunately, always been the case, whatever their good intentions.

Baroness Williams of Trafford: My Lords, I thank the noble Lord, Lord Ponsonby, for outlining this amendment with such clarity. Domestic homicide is a horrendous crime and I reassure the House that  tackling this is a key priority for the Government. Part of the solution is ensuring that domestic homicide reviews take place at every opportunity. They offer an opportunity, as the noble Lord said, to learn lessons to prevent the same mistakes occurring again. It is important that every domestic homicide is considered for a domestic homicide review so that, as he said, lessons can be learned and further deaths prevented.
I reassure the noble Lord that domestic homicide reviews are conducted in the great majority of cases, but there may be instances where one is not appropriate or necessary. The Government are clear that domestic homicide reviews should be considered at every opportunity, and the 2004 Act already makes provision for the Home Secretary to direct that a domestic homicide review takes place where required.
When a community safety partnership decides not to conduct a review, the decision is closely scrutinised and escalated to the Home Secretary to enable her to use her powers to direct a domestic homicide review, if appropriate. This involves a review of the decision by the independent quality assurance panel, whose views form the basis of the advice provided to the Secretary of State. The review of all decisions not to conduct a review is a new process implemented earlier this year. Since implementing it, the Secretary of State has directed four homicide reviews. I hope the noble Lord sees this as an example of how seriously this Government take these reviews.
On data collection, I reiterate to noble Lords that the Home Office has in fact committed to creating an online central repository of domestic homicide reviews to improve accessibility, exactly for the reason the noble Lords, Lord Carlile and Lord Ponsonby, pointed out. At present, all reports are published on individual local authority or community safety partnership websites, but often only for a limited period. Creating the central repository will mean that all completed reviews are readily available, including to support the monitoring of the implementation of any recommendations. This is expected to go live next year. I understand that the terms of reference of the review have been published.
Regarding the letter the noble Lord, Lord Ponsonby, cited at the beginning of his remarks, I will do some investigating and come back to him, because I really do not know what has happened to it. That is unfortunate, but I will chase it up and ensure he has a response. With that, I hope he will be happy to withdraw his amendment.

Lord Ponsonby of Shulbrede: My Lords, I will of course withdraw the amendment, which was essentially intended to nudge the noble Baroness. I thought the noble Lord, Lord Carlile, made a very reasonable point when he highlighted the postcode lottery if there is not a review of all cases. He also said—I thought very persuasively—that services will take greater care if they know there will be a review. Perhaps I could ask for an additional, interesting piece of information to be included in the letter: how many domestic homicides have there been in a recent period where there has not been a review? I beg leave to withdraw my amendment.
Amendment 42A withdrawn.

  
Clause 36: Extraction of information from electronic devices: investigations of crime etc

Amendment 43

Baroness Chakrabarti: Moved by Baroness Chakrabarti
43: Clause 36, page 29, line 32, at end insert—“(4A) The user may choose to be in the presence of the authorised person during the extraction unless either the user or the authorised person deems it impracticable or inappropriate, in which case an explanation must be set out in writing in the agreement referred to in subsection (1).” Member’s explanatory statementThis amendment, along with another amendment to Clause 36, page 29, line 32, in the name of Baroness Chakrabarti, would permit the user to choose whether to be present during the digital extraction, unless deemed impracticable or inappropriate; and create a statutory time limit for the authorised person’s retention of the device in the event that it is necessary to take possession of it. If the time frame elapsed without extraction taking place, a new agreement would need to be sought.

Baroness Chakrabarti: My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.
I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.
I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.
While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.
Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.
Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.
The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

Lord Beith: My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.
Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?
How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?
How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something  else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.
What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.

Lord Carlile of Berriew: My Lords, the noble Lord, Lord Beith, with his usual remarkable acuity, has put his finger on a very important point, which is the question of disclosure. It is clear that police forces have tended to use disclosure as the reason for obtaining much of the material that has been unnecessarily obtained, so let us be clear what the duty of disclosure is. There is a duty to disclose to the defence material that undermines the prosecution case or materially assists the defence case, but that cannot be a reason for oppressive conduct against a complainant.
I absolutely commend the amendments tabled by the Government—they are extremely helpful in taking this issue forward—but I also support the amendments tabled by the noble Baroness, Lady Chakrabarti, which would strengthen the forward-looking view of the amendments. It is a real risk that women, and indeed young men, who are the victims of rape will not pursue the case because they feel oppressed, embarrassed or threatened by unnecessary requirements framed under the heading “disclosure”.
We have a situation in which the number of rape cases prosecuted by the Crown Prosecution Service, and the number of alleged rape cases reported by the police to the CPS, has diminished dramatically over the years. It is no accident; the CPS does not like to run the risk of losing cases if it can avoid it. There are certain types of cases where there might be an inherently higher risk of a prosecution failing, but they should still be prosecuted at a significant level because of the effect the complaints behind those cases have on the way society operates—the way men and women, and men and men, have their relationships, which are so crucial to a stable society. I believe that the CPS has been completely wrong and unwise to abandon the procedures put in place in previous years. I regret that it has failed to recognise that in as clear a way as it should.
I hope very much that the Government will look at all these amendments together and accept that improvements can be made to achieve an end that we all share. The way our children and, for some of us, our grandchildren now use their mobile phones is quite different from anything we would have imagined. They share intimacies on their mobile phones that would have been shared only orally one generation ago and not at all two generations ago. This is a change in our society. We have to recognise that we must respect some part of the privacy of such material.
My final point is that there is a great responsibility particularly on the police. I absolutely recognise that there are expert police officers dealing with RASSO  cases now, but there is an absolute responsibility on police officers, including in rural areas where there is a significant shortage of training for specialist police officers, to explain to complainants what is going on before they ask for the material and before those individuals have to make a decision as to how much of their intimate material to reveal to the police, and potentially to the court. One of the pieces of advice that should be given to them—I am afraid I have to confess that I have done this—is that some quite extensive cross-examination sometimes takes place in courts that is not expected by victims of rape. My support is, I hope, intensely practical and intended to be constructive.

Baroness Jones of Moulsecoomb: My Lords, I very much hope the Minister can listen to this, because it is obvious that there is a general concern. I will keep my remarks brief because I agree with everything that has been said so far, particularly on the Hobson’s choice that victims are often given: either they hand their telephone over voluntarily or they have it confiscated. That really is an abuse of procedure.
I would like the Minister to answer a question for me: if there is that threat inherent in what the police tell a victim, would any evidence gathered under Clause 36 be inadmissible in court? I rather think it should be. We should remember that government Ministers have been very reluctant to have their electronic devices pored over by the police, and have dropped them or broken them or things like that. This is an intrusive and invasive procedure. It should be done as best as it can be, and at the moment it really is not.

Baroness Hamwee: My Lords, regarding the point made by the noble Lord, Lord Carlile, about explanations, I absolutely support him, as do two of the amendments in this group—Amendment 43, in which “explanation” is used, and Amendment 50, concerning giving notice “orally”. I am sure that noble Lords will understand the significance of that. Many people will take in something which is explained to them face to face and orally in a way which they might not if given a rather formal document to read.
I ask the Minister about the extent of what is meant by “confidential information”. There is a reference to what will become Section 42. As I read it, it is not confidential in the normal meaning of the word, but refers only to journalistic material, legally privileged or business material, as referred to when one follows through the cross-references, and not to personal material. Can she confirm that, because it very much affects what these clauses do? Can she also help the House with the relevance in her Amendment 47, in the proposed new subsection (7C), of the amount of confidential information likely to be stored on the device? Amount is not the same as significance.

Bishop of Leeds: My Lords, especially following the speech by the noble Lord, Lord Carlile, I am conscious that I have no conception of what the world looks like through the eyes of my grandchildren. When I was their age there were three channels on television, which began at 4.40 in the afternoon with “Jackanory”. The world has changed considerably and, although I have tried to keep up with technology,  professionally and personally, I am aware that I cannot see the world into which we are moving. We are not ahead of the game.
With the greatest respect, I look around this House and conclude that we are not the generation to be looking ahead and anticipating the world of communication, particularly through phones and so on. I am told by industry experts that what we have now is probably a couple of generations back from what we will have. I have lost track of Elon Musk and all the stuff going on in relation to space travel but, in framing such legislation, are we consulting the younger generations, who are well ahead of the rest of us on technology and communication potential? It is a simple question. I would not want to hand my phone over now, but I am sure that my grandchildren will have stuff on their phones which I would not even begin to understand. We need to be very careful.

Lord Paddick: My Lords, we support all the amendments in this group in the name of the noble Baroness, Lady Chakrabarti, and if I had been on the ball I would have signed them. I also have Amendment 50 in this group.
The user of the device from which data is being extracted should be able to see what is happening whenever that is practical, and be reassured that only relevant data is being downloaded, as suggested in Amendment 43. As has just been discussed, many people’s lives are on their phone and their lives are run by what is on their phone, so to be separated from it can have major consequences. That is why Amendment 44 suggests that the device should be taken only if absolutely necessary; an explanation given as to why it must be taken, if it is; and that it is returned as soon as practical, and in any event, within 30 days.
Amendment 45, adding “strictly” to “necessary”, narrows the circumstances in which data can be extracted. Digital downloads should not be used if there are other means of obtaining the information—whether “reasonably practicable” or not. Anything that deters survivors from coming forward or progressing their complaint should be avoided at all costs. “Not reasonably practical” sounds as if digital downloading could be used if it were easier than the alternative in Amendment 46. Amendment 48 provides for an independent review of the need for digital downloading, carried out by a senior police officer at the request of the user, who may be concerned that it is not strictly necessary and proportionate. Amendment 51 requires that an explanation is provided as to why it is necessary, how long it will take and the availability of a review.
As I pointed out in Committee, the Bill requires the authorised person to give notice only in writing to the user as to what, why and how the information will be extracted, the user’s right to refuse and the consequences of such a refusal. This is only to the extent that the investigation or inquiry will not end merely because the user refuses. Will the Minister state on the record that this is different from such a refusal having no consequences? For example, the defence in a rape case—where consent is an issue—may claim that withholding such information has implications which the jury might be asked to consider.
Akin to the rights of a detained person at a police station, it is not sufficient simply to wave a piece of paper under the nose of the user, who may be unable to read or be too traumatised to take in what she is reading. As the noble Lord, Lord Carlile of Berriew, and my noble friend Lady Hamwee have said, the authorised person should explain orally to the user and enter into a conversation to test her understanding to ensure that consent is informed and voluntary.
The government amendments attempt to address the concerns of my noble friend Lord Beith about confidential information. My noble friend Lady Hamwee was right: this should include confidential journalistic material and material subject to legal privilege, which was going to be dealt with by regulations. With the government amendments in this group, we appear to be inching forward on this, but concerns remain, as my noble friend explained. We support all the amendments in this group.

Lord Ponsonby of Shulbrede: My Lords, I thank all those noble Lords who have taken part on this group. The key issue which we need the Minister to take away is that there is more to be done in this area. We are grateful to her and her Bill team for their engagement with us and for the extra protections which the Government brought forward in Committee. I particularly pay tribute to the Victims’ Commissioner and her office for their leadership on these protections and the changes for victims which we need.
My noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, both raised crucial issues, particularly about the need for strict necessity and the importance of making sure that victims—who may be going through this process at a point of shock or extreme vulnerability—genuinely understand their rights.
Amendment 52A in the name of my noble friend Lord Rosser returns to the issue of material held by third parties. It applies to material such as a victim’s school report or mental health records. I am grateful to the noble Lord, Lord Anderson, and the noble Baroness, Lady Newlove, for their support on this issue in Committee.
The Government have accepted on the face of the Bill that extra protections are needed for victims where data are extracted from their phones. The next step is that the exact same protections must also apply where a victim’s privacy is being raided in any other area of their life.
These changes are being championed by the Victims’ Commissioner, with the support of the National Police Chiefs’ Council. They are vital for victims, for culture change and for the system as a whole. We need to get it right to give victims confidence, to stop unnecessary requests for information and to reduce the huge delays in investigations. I know the Minister recognises this issue. Will she commit to take it away and consult on the issue of third-party material with a view to bringing in protections?
Finally, I have to make the point that, in this Bill, the Government have recognised the need for statutory changes. Non-statutory options will not be enough on  third-party material, just as they have not been enough to prevent what is known as a digital strip search, a point made by my noble friend Lady Chakrabarti. Non-legislative options, such as a data processing notice, can be ignored by police forces. There is also evidence of their being used inappropriately—for example, a victim being asked to sign an incomplete document, or police officers not having any idea that the documents exist in the first place. In this Bill, we have taken a step forward to recognising this as the serious issue it is, and I hope that the Minister will commit to take it away and look at it further, with the aim of bringing forward legislative options for third-party material in the victims Bill. The Minister can be assured that we will return to this issue in the victims Bill to ensure further progress.
I shall pick up on a few points made by noble Lords in this very interesting debate. I thought the noble Lord, Lord Carlile, in his usefully practical response to the issues raised in these amendments, made a very interesting point. Of course, there must be balance here, and there is a duty of disclosure to the police and the CPS, so that they can make an informed decision on prosecutions, if they are appropriate. I have to say that, in recent years, when we have seen the lack of disclosure to the CPS and cases collapsing, none of my friends who are magistrates was surprised at the lack of disclosure in certain very sensitive cases.
The noble Baroness, Lady Hamwee, made an interesting point—in fact, a lot of noble Lords made interesting points; I thought I had read a lot about this, and yet a number of new points were made—about the amount of information saved and stored versus the significance of the information. It is very difficult to judge the balance between quantity and quality—in fact, it is almost impossible to judge because of the sheer volume of data that is stored on people’s phones.
I thought the right reverend Prelate the Bishop of Leeds also made an interesting point about consulting young people. We are all in the same position of struggling to keep up with the advance of technology. Young people may indeed be the best people to consult, and I wonder whether the noble Baroness will do that.
The final point made in the introduction by the noble Lord, Lord Paddick, was an intriguing suggestion: that the person handing over the data should be able to see what is being downloaded. I presume he means that, as more and more of our data is stored not on our phones but on the cloud, you can actually see people accessing your data, if you give them permission, as they are taking it. This is indeed a novel suggestion—I had not thought of it—and it is true that we are all being encouraged to store more and more of our data on the cloud, rather than on devices themselves. I look forward to the noble Baroness’s response.

Baroness Williams of Trafford: My Lords, I agree that this has been a very thoughtful debate. I hope that, at the end of this, the noble Baroness, Lady Chakrabarti, will not find me guilty of “Baroness-splaining”. This is such an important issue. As the right reverend Prelate pointed out, for young people, their mobile phones are their life and contain things that certainly their parents should not see, nor others either.
In Committee, I gave assurance that the Government were considering very carefully the Delegated Powers and Regulatory Reform Committee recommendation to the effect that provisions regarding the extraction of confidential information from electronic devices should be set out in the Bill rather than left to regulations, as Clause 42 currently provides. In our response to the DPRRC, which we sent to the committee last week, we confirmed that we accept the recommendation. Amendments 47, 49 and 52 to 55 make the necessary changes to Chapter 3 of Part 2 of the Bill to include provisions dealing with this issue.
These amendments are designed to ensure that additional safeguards will apply where an electronic device may contain confidential information, because authorised persons will be required to go through a separate assessment of the appropriateness of using the power where there is a risk that confidential information may be held on a device. To answer the question from the noble Baroness, Lady Hamwee, confidential information for these purposes includes legally privileged, journalistic and other types of protected materials, but I think that is what she suspected.
The noble Baroness, Lady Jones of Moulsecoomb, asked whether information extracted from a mobile phone would be disclosed to the defence. These provisions do not alter disclosure rules, which will continue to apply as now.
The amendments place an obligation on authorised persons to make a risk assessment, based on information that they have available, to decide how likely it is that they will come across confidential information on the device that they wish to examine. Having done so, they must turn their mind to the potential volume of confidential information held on the device and its potential relevance to the purposes set out in Clauses 36(2) and 40(2), for which the power can be used, in order to come to a view as to whether it is proportionate to use the power. This is intended to ensure particular consideration is given to the potential handling of inherently sensitive information. This will be reinforced by best practice guidance, to be set out in the code of practice under Clause 41. Authorised persons will be required to have regard to the code in exercising the powers under this chapter. We consider that this approach provides that balance between enabling extraction to go ahead in appropriate cases and safeguarding against improper access to confidential material.
Turning to the amendments in the name of the noble Baroness, Lady Chakrabarti, the House will recall that substantial changes were made to these provisions in Committee to further strengthen the safeguards for device users. These changes have been warmly welcomed by the Victims’ Commissioner. We believe, and I think noble Lords alluded to this, that any further issues can and should be addressed through the code of practice—more on that later—which will provide authorised people with detailed guidance on the lawful use of these powers.
Amendments 43 and 44 would afford a device user the option of observing the extraction taking place, unless that is impracticable or inappropriate. I can see the appeal of that, but different authorised people will have different tools available to them to carry out extraction, and these may be held in parts of a police  station or law enforcement premises where only members of staff can be present. It could also be held in third-party laboratories which are not equipped to host members of the public. We think that these restrictions will make this obligation impractical in many cases, and we do not think that an obligation to allow a device user to observe this process is workable.
Amendment 44 would also place a legal limit on the length of time that an authorised person can keep a device in their possession. Authorised persons already keep all devices for the minimum amount of time necessary, but the precise length of time is determined by a number of factors, and the officer to whom the individual gives their device gives an indication of how long this period will be. If for any reason this length of time changes, individuals are kept informed. I have highlighted in my notes that the rape review action plan makes clear our ambition to ensure that no victim is left without a phone for more than 24 hours.
Amendment 45 returns to a debate that we had in Committee about whether the necessity test in subsection (5)(c) of Clause 36 should use the language of “strict necessity”, as in the Data Protection Act, in these clauses. As I have said previously, the powers in Clauses 36 and 40 must be read alongside existing obligations under the Data Protection Act or, indeed, the UK GDPR. Looking at the requirements in more detail, Part 3 of the DPA 2018 contains specific provisions relating to processing personal data for a law enforcement purpose. The “law enforcement purposes” are defined, in Section 31 of that Act, as
“the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.”
To process personal data lawfully under Part 3 of the Data Protection Act, it must either be with the consent of the data subject or strictly necessary for a law enforcement purpose. In the case of the latter, one of the conditions in Schedule 8 to the Act must also be met. For example, the processing must be necessary for the protection of someone’s vital interests or necessary for the safeguarding of children or individuals at risk. The draft code of practice makes clear that “strict necessity” is the standard that must be met when exercising these powers for a law enforcement purpose and that “consent” is not an appropriate lawful basis.
The UK GDPR provides the regime that must be complied with for all other data processing; that is to say, processing for a purpose other than a law enforcement purpose. The regime is likely to apply where the powers are being used for the purpose of locating a missing person, protecting a child or an at-risk adult from neglect or physical, mental or emotional harm, or the investigation of death where there is no suspicion of criminal activity. It is not therefore appropriate to set one standard of data processing in these clauses where these different regimes apply. As I have previously indicated, the obligations under the DPA and the UK GDPR continue to apply, and we think that the code of practice is the appropriate tool to communicate these responsibilities to authorised persons.
Amendment 46 would remove the provision that allows for authorised persons to use these powers where other means of obtaining the information exist  but it is not reasonably practical to use them. It is necessary that this provision remains, as there may be instances where alternative means are available, but they require excessive resource—for example, either time or costs. The draft code of practice makes clear that the authorised person must assess whether other means available would be unreasonable in the circumstances and that delay alone is not sufficient justification not to pursue an alternative method unless there is a real and immediate risk of harm.
Amendment 48 would create a formal process for an individual to request a review from a senior officer of the necessity and proportionality of using the powers. We agree that all individuals must be given all relevant details about any requests for personal information and have included the obligation to share these details in writing. The data processing notice used by the police includes details of how to challenge a request, but, in all cases, individuals should be asked to volunteer their device and agree to the extraction of information from it only as a last resort, and requests must be necessary and proportionate.
As part of the rape review action plan, Thames Valley Police has begun a pilot to introduce the ability for victims in rape cases to request a review when the police make a request for personal information during the investigation stage. This is not confined to requests for digital evidence. We will continue to engage with interest with colleagues in the NPCC and Ministry of Justice who are working with Thames Valley Police. Following the pilot, if appropriate, we can address this issue further in revisions to the code of practice.
Amendment 50 in the name of the noble Lord, Lord Paddick, would ensure that the matters set out in subsection (3) of Clause 38 are explained to a device user orally as well as in writing. The clause requires notice to be given in writing to ensure that this information is formally recorded and can be referred to at a later stage of an investigation or inquiry if needed. We think that the code of practice is the best place to provide that additional guidance to authorised persons on how best to communicate this information to an individual before they agree to the extraction of information.
The noble Lord, Lord Paddick, challenged whether there would indeed be no adverse consequences for a victim if they refused to allow access to their phone. He pointed to the scenario of the defence in a rape trial where consent was at issue seeking to draw an adverse inference if the alleged victim had refused to hand over his or her phone. These provisions in the Bill are not about what may or may not happen at trial. Any request to extract information from a device should be a last resort, and the authorised person must be satisfied that the request is necessary and proportionate. If a victim chooses not to provide agreement, we are quite clear that that by itself is not sufficient grounds for the police or CPS to stop the investigation. I think the noble Lord, Lord Carlile, alluded to that. As with any other evidence type, the investigator would continue to seek other evidence that may assist the investigation.
The provisions also require the authorised person to consider other less intrusive methods, and if the victim does not wish to provide their device but the investigator believes there is relevant evidence on it that would progress the investigation—for example, text messages or emails—the police can use other powers, such as those contained in PACE, to obtain the suspect’s device and extract information from it. We see far too many victims withdraw from an investigation at an early stage, especially in rape and sexual offences cases, and while victims already have the right to refuse to agree to provide their device, the Bill seeks to ensure that victims are aware that they have that right. We expect that, as a result of the powers and safeguards we are introducing to ensure all requests are necessary and proportionate, more victims will feel confident reporting these terrible crimes in the confidence that a refusal to provide a device will not automatically stop the investigation.
The noble Lord, Lord Ponsonby, separately raised the issue of third-party material, which is the subject of Amendment 52A. As I said in Committee, the Government recognise that there is a real issue with requests being made for third-party material relating to victims, which sometimes cannot be justified as relevant to a reasonable line of inquiry. Unjustified and intrusive requests can have a significant impact on the confidence of victims who report sexual offences and may put off more from doing so.
I am very grateful to the Victims’ Commissioner and her team for suggesting an amendment to this Bill, but we do not think that we can simply apply the legislative framework relating to extraction of information from electronic devices to third-party material. Although we agree that these clauses provide key principles that could apply to investigators requesting third-party material, access to such material is a broader issue. We need to consider very carefully, in consultation with partners, how a legal framework could operate.
None the less, the Government recognise that legislation may well be part of the solution, and I can commit to actively exploring statutory options. While we consider such options, the police and the CPS must prioritise non-legislative solutions to ensure that practice among investigators and prosecutors improves sooner rather than later, as it is critical that requests for third-party material are necessary and proportionate and form part of a reasonable line of inquiry.
I thank again all those who contributed to the shaping of these provisions, particularly the Victims’ Commissioner and others representing the views and needs of victims, such as the organisations that the noble Baroness, Lady Chakrabarti, mentioned. In addition to strengthening the safeguards that appear in the Bill, including now in relation to confidential material, I again remind the House that the exercise of these powers will be supported by a code of practice which will be the subject of a formal consultation once the Bill achieves Royal Assent. This will provide that further opportunity for interested parties to contribute to the guidance that will govern the daily use of the powers, and I encourage them all to participate.
I say formally that, as part of the consultation, I shall be very pleased and ready to meet the noble Baroness, Lady Chakrabarti, and the organisations  that she mentioned today to hear their views first-hand, because it is very important that we get this right. I shall ask my office to set up such a meeting following the launch of the consultation.
In conclusion, I hope noble Lords agree that we have the balance right at this stage between the safeguards to appear in the Bill and the matters that are appropriately addressed in the accompanying code of practice. I hope, on that basis, and on the understanding that we continuing to examine the issue of third-party material, the House will support the government amendments in this group and be content not to move other amendments.

Baroness Chakrabarti: I am grateful to all noble Lords who spoke in this short debate. What a great team, and a model of brevity, clarity and compassion, if I may say so. I thank the noble Lord, Lord Beith, for his rhetorical prods, which highlighted why “strict necessity” should be the operable test here—and, of course, the noble Lord, Lord Carlile, for reiterating disclosure obligations and the nature of the abuse that has been taking place in this area for too long. He was the first to crystallise the intimate nature of the virtual world, which was echoed by the right reverend Prelate and the noble Baroness, Lady Hamwee, among others—thus making it so important that the police explain not just this material and what is going to happen to it but what the process will be thereafter, including potentially court.
The noble Baroness, Lady Jones, ever succinctly and pithily, pointed to the Hobson’s choice with which too many complainants have been presented up to now, and I know that the Minister understands that. The noble Lord, Lord Paddick, should never suggest that he has not been on the ball in relation to this group or any part of the Bill. He has been the most diligent of all the very senior retired police officers in your Lordships’ House on these matters. I am also grateful to my noble friend Lord Ponsonby for making the case so clearly in relation to third-party material; it will clearly need to be returned to in relation to the victims Bill. I am glad that the Minister does not want the police and CPS just to wait for that. It is about trying to improve things immediately; they have been too dilatory in this area for too long.
I shall not respond to each answer that the Minister so graciously offered, save to say that I am not totally persuaded. If anything, some of her answers actually pointed to the wisdom of these amendments. For example, she mentioned a number of times the principle of last resort before this material should be sought from a complainant. That is strict necessity—not the softer approach of necessity and proportionality, and I do not understand why that higher test should not be replicated. It is great that it is in data protection legislation, but why should it not, as a matter of good law and good governance, be in this legislation?
However, I shall not be churlish, because in both the tone and substance of her remarks, the Minister has been such a contrast on this issue with those who have sat there before her. While warmly accepting her invitation to meet with her later and the various organisations, I beg leave to withdraw the amendment.
Amendment 43 withdrawn.
Amendments 44 to 46 not moved.

Amendment 47

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
47: Clause 36, page 30, line 13, at end insert—“(7A) Subsection (7B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information.(7B) The authorised person must, to be satisfied that the exercise of the power is proportionate— (a) have regard to the matters in subsection (7C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(7C) The matters referred to in subsection (7B)(a) are—(a) the amount of confidential information likely to be stored on the device, and(b) the potential relevance of the confidential information to—(i) a purpose within subsection (2) for which the authorised person may exercise the power, or(ii) a purpose within subsection (2) of section 40 for which the authorised person may exercise the power in subsection (1) of that section.”Member’s explanatory statementThis amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (7B) of Clause 36 in order to be satisfied that the exercise of the power in clause 36(1) to extract information from the device is proportionate.
Amendment 47 agreed.
Amendment 48 not moved.

Amendment 49

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
49: Clause 36, page 30, line 24, at end insert—““confidential information” has the meaning given by section 42;”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 13.
Amendment 49 agreed.

  
Clause 38: Requirements for voluntary provision and agreement
  

Amendments 50 and 51 not moved.

  
Clause 40: Extraction of information from electronic devices: investigations of death

Amendment 52

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
52: Clause 40, page 35, line 17, at end insert—“(6A) Subsection (6B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information.  (6B) The authorised person must, to be satisfied that the exercise of the power is proportionate—(a) have regard to the matters in subsection (6C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(6C) The matters referred to in subsection (6B)(a) are—(a) the amount of confidential information likely to be stored on the device, and (b) the potential relevance of the confidential information to a purpose within subsection (2) or section 36(2).”Member’s explanatory statementThis amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (6B) of Clause 40 in order to be satisfied that the exercise of the power in Clause 40(1) to extract information from the device is proportionate.
Amendment 52 agreed.
Amendment 52A not moved.

  
Clause 42: Regulations about the extraction of confidential information

Amendments 53 to 55

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
53: Clause 42, page 36, line 16, leave out subsection (1)Member’s explanatory statementThis amendment is consequential on the amendments in the name of Baroness Williams of Trafford at page 30, line 13 and page 35, line 17. It omits provision requiring the Secretary of State to make regulations about the exercise of the powers under Clauses 36 and 40 (extraction of information) in relation to confidential information.
54: Clause 42, page 36, line 21, leave out “section” and insert “Chapter”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 24.
55: Clause 42, page 37, line 4, leave out subsections (4) to (6)Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 36, line 16.
Amendments 53 to 55 agreed.

Amendment 55ZA

Lord Garnier: Moved by Lord Garnier
55ZA: Clause 63, page 59, line 11, at end insert—“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will  become available within a negotiated stopping site in the local authority’s area, andthat in either case P has been informed of the availability of such a site.(1B) If there are no relevant caravan sites, or there will not within 48 hours of their receiving notice of P’s presence on the land be a negotiated stopping site within the local authority’s area, and P remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered by them as a consequence of P’s entering upon and remaining on the land. (1C) Where P remains on the land under subsection (1B), P does not acquire any right of possession as against the owner or occupier of the land.(1D) In subsections (1A) and (1B)—“caravan”, “caravan site”, “relevant caravan site”, “relevant site manager” and “registered social landlord” have the same meanings as in section 62A(6);“a negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”Member’s explanatory statementThe amendment would provide that a person only commits an offence where they are trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site in the local authority’s area; and where they remain on the land because there are no other suitable sites, the landowner or lawful occupier are to be compensated for all loss and damage caused by their entering upon and remaining on the land.

Baroness McIntosh of Hudnall: My Lords, the noble Baroness, Lady Brinton, will be participating remotely in this debate.

Lord Garnier: My Lords, I begin by explaining that I will not be pressing my amendment to a Division. I thank the noble Baroness, Lady Whitaker, for prompting me—although she may not have realised this at the time—during the course of Committee, when we were debating other amendments in Part 4 dealing with unauthorised encampments. On that occasion, I explained that I thought there was an unfairness in the Bill in relation to the victims or respondents to criminal trespass—the tenant or landowning victims of trespass on the land; I know there are plenty of arguments about whether there should or should not be criminal trespass. I mentioned a particular example when I was a Member of Parliament some 25 years ago, in 1996 or 1997, when not only did a large group of travellers trespass on a constituent farmer’s land, but their dogs were troubling this farmer’s sheep. Some of them were killed by the dogs in question.
The noble Baroness, Lady Whitaker—perfectly fairly, I think—made the point in that debate, in which I was seeking to place the burden of proof that an activity on a landowner’s or tenant’s land was being conducted unlawfully, on the trespasser who wished to assert that the occupier of the land was conducting an unlawful activity, which could have been any sort of activity. Essentially, I was seeking to persuade noble Lords that  it was far more just for the invader of the land to demonstrate that what they were seeking to stop—for example, the growing of genetically modified crops—was unlawful, and that it should not be for the owner or occupier of the land who was carrying out a lawful farming activity to show that he was not conducting an unlawful activity.
That aspect of the debate in Committee is not particularly relevant to what we are doing now, save that it prompted the noble Baroness, Lady Whitaker, to draw my attention to her argument that, because local authorities have historically failed to provide any, or any adequate, official sites for travellers to park their vehicles and reside on, this problem of invading other people’s land will continue.
I hope I am not breaching a confidence by saying that the noble Baroness and I had a conversation after that debate. I was much informed by what she told me and it to some extent informs the drafting of my amendment. I hasten to add that it is my amendment, not hers; she has a number of others in this group and will no doubt speak to those in a moment.
I differ from the noble Baroness, Lady Whitaker, in that her amendments and others in this group are, entirely properly but none the less regrettably, one-sided. They look after the interests of the Travelling community but fail to understand the problems caused to a farmer, landowner or tenant on whose land Travellers may wish to go. It may well be that the Travelling community has plenty of good reasons for occupying others’ land because, as perhaps the noble Baroness will say, local authorities have failed to provide adequate official sites. In my amendment, I seek to take account of the failure of local authorities to provide adequate sites for Travellers to reside on temporarily.
If local authorities fail or refuse to make adequate provision, it should not be a cost-free exercise for them, nor should it lead to a state of affairs in which the innocent farmer, landowner or other lawful occupier of an area of land is left uncompensated for the damage that may be caused as a result of unlawful occupation or trespass upon it. That is why I have drafted my amendment in the way I have. I hope that, by urging the Government to at least grapple with the idea, this amendment, if it became part of the Bill, would incentivise local authorities to provide the official sites that the noble Baroness vehemently wishes to see.
If local authorities are faced with the possibility that they may have to pay compensation after 48 hours of occupation because they have failed to provide official sites or negotiated stopping sites, as they are called, they may start to do rather better in that area. They may provide sites or share sites with other local authorities where Travellers can park their vehicles and live, either temporarily or for a longer period.
Amendment 55ZA relates to Clause 63. As I said at Second Reading, the Bill is far too long and covers far too many subjects, but since this Clause is there, it provides me with an opportunity to make the Bill yet longer; I rapidly took up that opportunity in Committee and also do so now.
There is a compromise to be made between the wishes of the noble Baroness, Lady Whitaker, and those who support her, who want to see more official sites, and people who agree with me that, if there are not going to be more official sites, there will be further trespass on people’s land and people whose land is occupied by trespassers should not be disadvantaged. I am looking for a pragmatic solution which enables both the Travelling community and the farmer or landowner to be satisfied, or at least less unsatisfied by the inadequate conduct of local authorities, which ought to be providing Travellers with sites.
That is why my proposed subsection (1B) says that, if there are no relevant caravan sites or if, within 48 hours of the complainant receiving notice of the trespasser’s presence on the land, a pitch on a negotiated stopping site within the local authority area is not offered, and if the trespasser then remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered as a consequence of the trespasser entering and remaining on it. My amendment is not anti but pro-Traveller, because it encourages the local authority to make sure that either there are official sites or that, within a 48-hour period of notice having been given of the arrival of the trespasser on a particular piece of land, a temporary arrangement is arrived at. If this requires the trespassers to remain on that land for more than the 48-hour period, the landowner or lawful occupier of the land is compensated.
Negotiated stopping sites are not a new idea. A number of local authorities in England and also, I think, in Scotland have, to the advantage of the local authority and Travellers, entered into discrete local agreements in relation to particular Travellers on particular areas of land so that they can be accommodated with the consent of the local authority and the owner of the land and to the satisfaction of the Traveller community. That prevents dissension and intra-community arguments between local residents and the Travelling community.
So long as the negotiated stopping site comes with an agreement that there will be refuse collection, that a charge can be made and received for water supply so that those living on the site can wash and look after themselves and that all the usual things that one would expect on an official site are provided, and so long as the negotiated stopping site does not turn into a permanent site if that is not what the local authority requires, it seems we are producing something that is of benefit to all sides.
It is clear from the debate we had in Committee that there is a huge amount of misinformed but none the less quite vehement objection to the conduct of Travellers. I rather got the impression from listening to the debate that they were being tarred with any number of brushes. It seems to me that all that would go away if local authorities got on and provided proper sites, or if they were sufficiently quick on their feet to negotiate individual stopping sites and if the people disadvantaged by unlawful occupation were properly compensated for the damage caused to them and their farming or other businesses.
That is the simple point of this amendment, and I have taken far too long to explain it.

A noble Lord: Yes, you have.

Lord Garnier: I am so glad to have the approbation of the noble Lords opposite, for whom I have the greatest respect—on their negotiated stopping site.
That is what I invite the House and the Minister to consider, and perhaps the Minister will respond in due course, saying why my idea is not quite as wonderful as I think it is.

Baroness Brinton: My Lords, I am a patron of the Traveller Movement. I thank the Minister for reaching out to those of us interested in this issue and I am sorry that the change in date meant that I was unable to attend. I also thank the noble Baroness, Lady Whitaker, for her dedicated work in co-ordinating the efforts of those of us who remain very concerned about these clauses in the Bill.
In Committee, we had a full debate on how the clauses on authorised encampments are a breach of the human rights of the Gypsy, Roma and Traveller communities to live a nomadic life. I thank the noble and learned Lord, Lord Garnier, because he has tried to propose a compromise regarding stopping sites. It certainly merits listening to, and I hope the Minister will take account of it.
In my contribution today, I wish to focus on just one area. Clause 63 also creates the right for the police to confiscate a vehicle that may be an individual and their family’s main residence. That confiscation would have the most extraordinary consequences, giving the police very strong powers that they do not have in respect of other people’s principal residences. If the police were to confiscate a vehicle under this clause, families would not only become homeless, but because they would be deemed to have become intentionally homeless, there is a possibility that their children would be taken into care, especially if there was no appropriate emergency accommodation locally. By doing that, parents may also not be able to move on to their next planned place of work.
I support Amendment 55ZC from the noble Lord, Lord Paddick, which protects individuals by preventing police confiscating their vehicles if it would make the individual owner, and their family, homeless.
The National Police Chiefs’ Council could not be clearer. It said:
“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
In Committee, the Minister said that these clauses are not targeted at the Gypsy, Roma and Traveller community, but it certainly looks that way, especially as the Government explicitly referenced Traveller caravans in the background briefing to the Queen’s Speech. The Government have also made it clear that they are not criminalising trespass more generally. Even if the outline  of these proposals were in the Government’s manifesto, actions that target one particular community, infringing their human rights and giving the police powers that they have said repeatedly that they do not want, cannot be right. I hope that the Minister will rethink this deplorable legislation.

Baroness Whitaker: My Lords, I apologise for not raising my eyes to the noble Baroness, Lady Brinton, initially. Her remarks are well worth paying attention to.
I am flattered by the attribution of influence by the noble and learned Lord, Lord Garnier. I have taken a slightly different route, but his amendment is interesting. All the amendments in this group are aimed at resolving prejudice against and actual homelessness of the Gypsy and Traveller communities. They all deserve serious consideration. Amendment 57 in the name of my noble friend Lady Lister and the cosignatories of my amendment would deal with the underlying social situation of these fellow citizens, in particular the non-arrival of the strategy initiated quite some time ago by the noble Lord, Lord Bourne, when he was the very effective Minister responsible, and I think endorsed by the noble Baroness, Lady Williams.
I will speak to Amendment 55ZB in my name and supported by a distinguished cross-party group to whom I express my gratitude. I will move it to a vote if its thrust is not accepted by the Government. I am also grateful to the Minister for the meeting she gave several of us last week, when she said that the provision of the sites for Gypsies and Travellers was a planning matter and an amendment that dealt with that was not for this Bill. Indeed, it is a planning matter, as the police said in their evidence to the consultation on the Bill, but the trouble is that the lack of sites and consequent vulnerability of Gypsies and Travellers to summary eviction is inexplicably linked. Despite the noble Baroness’s assurance at our meeting that she would consult DLUHC on a way forward, I have heard nothing further.
Although local authorities have a duty to assess the need for caravan sites in their assessment of housing need, it remains the case, as we said in Committee—endorsed now again by the noble and learned Lord, Lord Garnier—that local authorities simply do not do this throughout the country. Some do, but the resulting national provision is so far short of need that an unacceptable proportion of the small number of travelling nomadic families undergoes damaging disruption to their children’s education, hostility and traumatic upheaval as a frequent routine, as was comprehensively heard in Committee.
We do not think that this should be tolerated, hence our amendment protects travelling families from the nightmare of forceable eviction unless they have ignored a suitable site, with an additional provision of a short interval to arrange a negotiated stopping place. This is an excellent system, pioneered by Leeds local government and its Gypsy and Traveller community. It provides mains drainage and rubbish collection. It is very far from a licence to leave a mess, which some noble Lords appear to think is the norm, because there are conditions attached to staying on a negotiated site, as  the noble and learned Lord, Lord Garnier, said. They have to keep it tidy and quiet; they have to run an orderly site.
This amendment would give local authorities a much-needed incentive to set up orderly sites and thus avoid the substantial costs of eviction. My discussions with local government representatives indicate that local authorities would be receptive to enabling such a system. Their evidence to the Government’s consultation on the Bill makes it quite clear that the shortage of sites is a key issue, and a nationwide network of negotiated sites where needed would obviate the fear on the part of Gypsy families that they will have nowhere legal to put their home. It would also do much to counter the prejudice and bigotry they encounter.
I commend the noble Lord, Lord Greenhalgh, for his first step of encouragement of this system. Without it, we are at risk of allowing a barbaric, arguably illegal and cruel regime to deal with a gap in the planning system. It is time to get serious about site provision.

Baroness Bennett of Manor Castle: My Lords, I will speak to my Amendments 55A, 55B and 56A. I also express support for amendment from the noble Baroness, Lady Whitaker, and great appreciation for her enormous hard work on this issue over a very long period. I declare my position as a member of the APPG on Gypsies, Travellers and Roma.
Persecution of Gypsy and Roma people in the UK goes back a very long way to soon after they arrived as an established community on these shores. They were banished in 1531 and again in 1544. In 1655, an Edinburgh merchant was allowed by the Privy Council to transport a range of people including Egyptians, as Gypsies were then known, to Barbados and Jamaica. In 1715, nine women and men were, in the same manner, transported to Virginia. There is no evidence that any of these people had committed any crime.
We are quite a few centuries on from the history I am citing, yet somehow we find ourselves in a sadly familiar place, with a part of the law explicitly targeting people who been long subject to the prejudice, discrimination and the bigotry that the noble Baronesses, Lady Whitaker and Lady Brinton, referred to. Part 4 of this Bill has caused great distress, concern and fear among the people who risk being affected by it and a great outcry from our entire human rights community.
That is why I have tabled Amendments 55A, 55B and 56A, which would strike out all of Part 4 of the Bill. I cannot move in any other way at this point, even though I accept and will vote for the amendment from the noble Baroness, Lady Whitaker, should she put it to a vote. It is my intention, however, to test the opinion of the House, because this is a moral point that cannot be allowed to simply drift by.
No one can claim to be unaware of these issues. Should it be new to any noble Lord, I point them to an article on openDemocracy by Luke Smith, an article in the Independent by Lisa Smith, and the submission from the Friends, Families and Travellers group to the government inquiry. I also point to the fact that George Monbiot has described Part 4 of the Bill as “legislative cleansing”.
At Second Reading, the Minister claimed that this was all about protecting communities from the distress and loss of amenity caused by unauthorised encampments. However, the noble Baroness, Lady Brinton, referred to the police reaction to this, and I will expand a little on what she said. In the response to the government consultation in 2018, 75% of police responses said that current police powers were sufficient, and 85% of police responses did not support the criminalisation of unauthorised encampments. I am going to repeat the conclusion of the National Police Chiefs’ Council, because it must not be ignored:
“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regards to the Human Rights Act 1998 and the public sector equality duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
I must apologise to the House for being unable to attend Committee for this part of the policing Bill because I was at the COP 26 climate talks, and as the very small Green group we have to divide our resources as best we can. However, I thank my noble friend Lady Jones of Moulsecoomb for her explanation and expression of my intent to do this at this stage. As my noble friend said then, these clauses are completely unacceptable, discriminatory and dangerous, and that is why I am making this move today.
Again at Second Reading, the Minister said that this was delivering on a manifesto commitment. I can imagine it being said that under the conventions of the House the Lords are not supposed to thwart things that are in an elected party’s manifesto—even when that manifesto won the backing of only 44% of voters. But what if something is simply morally wrong—is racist, and risks putting us on a potentially slippery slope to horrors that the world has seen before?
It also worth questioning the celebration of British values. If any noble Lords have not seen it already, I point them to the article by the noble Lord, Lord Dubs, in the Independent today, which addresses that very point. I also point them to the conclusions of the Joint Committee on Human Rights:
“Gypsies, Roma and Travellers would … be in the position of potentially committing a criminal offence without having done anything at all, merely having given the impression to another private citizen that they intended to do something. This is very dangerous territory, which risks creating offences whose elements could largely be based on the prejudice of the accuser, and, perhaps, the justice system.”
To really explain why I intend to test the opinion of your Lordships’ House—at least on Amendment 55A; I will see how that goes—I would point out that blowing a dog whistle does not just create a momentary disturbance. Blowing a dog whistle calls the pack together, and we know that in a pack behaviour is different—potentially more violent, dangerous and disastrous than people acting alone. The amendments, commendable as they are, do not silence the dog whistle. Having looked at history, I have to say to your Lordships’ House that I have to do what I can today to try to ensure that that whistle is not blown. It is my intention, therefore, to call a vote on Amendment 55A.

Baroness Lister of Burtersett: My Lords, I rise to speak to Amendment 57, which is in my name, those of the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, and that of the right reverend Prelate the Bishop of Manchester, whose support I am very grateful for.
First, however, I express my support for other amendments in this group, in particular the one in the name of my noble friend Lady Whitaker, who, as has already been said, has been such a long-standing and doughty campaigner on these issues. I also wish to make clear my opposition to this part of the Bill, on the grounds of social justice and human rights, which, as we made clear last week, should not be subject to a process of so-called “gold-plating”. I will not, however, repeat the arguments that I made in Committee, and unfortunately I do not think, realistically, that we can excise these clauses, damaging as they are. I say that with apologies to the noble Baroness, Lady Bennett of Manor Castle, who has made a very strong case for doing so.
As I warned the Minister in advance, the purpose of this amendment is not quite what it says on the tin, which reflects what the Public Bill Office considered to be in scope. The phrase “entrenched inequality” is taken from a June 2019 press statement for the launch by the then Communities Minister, Lord Bourne, of a national strategy to tackle the inequality experienced by the Gypsy, Roma and Traveller communities. Thus, what this amendment seeks to do is facilitate a debate about what has happened to this much-needed and overdue strategy, and to push for some action on it. It is framed in the way that it is because Part 4 should not have effect until the strategy, which should address Part 4’s likely impact on entrenched inequality, has been published, with a report laid before Parliament for debate.
The announcement of the proposed strategy in June 2019 followed a blistering report from the Women and Equalities Select Committee. It concluded that Gypsy, Roma and Traveller people have the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime—to which I would add housing, which it chose not to look at. The committee observed:
“While many inequalities have existed for a long time, there has been a persistent failure by both national and local policy-makers to tackle them in any sustained way.”
The committee deplored the lack of leadership shown by the relevant ministry and the failure to develop a cross-departmental strategy. It was also critical of the reliance on pilot projects that did not seem to go anywhere. In a letter to the then Minister, the committee welcomed the announcement of the proposed strategy as “a very positive step”, but noted the lack of detail. More than two years later we still await that detail, despite repeated ministerial assurances that they remain committed to a strategy to tackle the inequalities identified by the committee and others.
In Committee, I asked the Minister for an update and an assurance that the long-awaited details would be published before Report. The Minister responded that she understood that the department for levelling up, et cetera, was
“working closely with other government departments to progress the strategy, which will be published in due course.”—[Official Report, 3/11/21; col. 1333.]
She then predicted that I would roll my eyes at the phrase “in due course”—and how right she was. She assured noble Lords, however, that the Government remained firmly committed to the strategy’s delivery.
I am afraid that simply is not good enough, especially in the face of legislation that is widely predicted to entrench further the inequalities suffered by the GRT communities. I gave the Minister notice of the purpose behind this amendment in the hope that she might have been able to extract something more substantial than “We’re working on it” from the department for levelling up et cetera, and answer questions such as: what are the parameters of the proposed strategy? Will there be targets? When will it finally be published? Answers to such questions are the very least we—and, more importantly, members of the GRT communities—can expect at this stage. I hope the Minister will be able to provide some answers.

Bishop of Manchester: My Lords, I declare my interests, first in my work with the National Police Chiefs’ Council, which has already been referred to today, secondly as chair of the Wythenshawe Community Housing Group, and lastly as deputy chair of the Church Commissioners for England, one of the largest owners of farmland in the country. I think I have almost as wide a range of interests as has this extraordinarily diverse and far-reaching Bill.
I am grateful to those noble Lords from across the House who have proposed and supported the amendments in this group and spoken to them so powerfully in this debate. Like others, I am also grateful to the Minister for generously taking time to engage with us last week.
In my short time so far as a Member of your Lordships’ House, I have become accustomed to Ministers telling us that they have sympathy for our position but that the present Bill is not the way to address the matters that concern us—for example, when we tried to look at safety in high buildings on the then Fire Safety Bill. I do not see why we cannot play the same card. We need a separate Bill, one that deals comprehensively with the needs as well as the obligations of Gypsy, Roma and Traveller people—not simply legislation that offers fresh and very serious penalties for what may be rather minor infractions. The matters addressed in these clauses would surely be better dealt with in that more balanced context. That would allow Her Majesty’s Government to deliver on their manifesto commitment.
If that is asking too much, the penalties exacted for matters treated in this part of the Bill should at least be proportionate to the offences committed and not excessive. I draw your Lordships’ attention to the principle of lex talionis, set out in the Hebrew scriptures and most commonly referred to as “an eye for an eye”. This was intended never as an endorsement of physical mutilation but as a limit to how severe a sanction should be. It sets a maximum, not a minimum. Put bluntly, no penalty should exceed the seriousness of the offence.
I know from my housing association experience that there are many cases in which someone may inhabit their dwelling in ways that cause nuisance to their neighbours —the way they dispose or do not dispose of rubbish; playing loud music late at night; abusive language; sometimes even damage to neighbours’ properties—but I also know that there are many checks and balances before anyone can be removed from their home. Yet these clauses could allow for confiscation of somebody’s primary or only dwelling on the basis of a very low level of nuisance caused. Unless Amendment 55ZB in my name and those of other noble Lords is accepted, there will be no need to ensure that any alternative accommodation or site is, or rapidly can be made, available. There is some irony that we are debating powers to render families with no place to lay their heads, not even a stable, this close to Christmas. Surely we need to balance these provisions by a limitation on using them in such circumstances.
I know it is not the Minister’s intention to enact disproportionate penalties for minor infringements, so finally I ask her, as well as accepting our Amendment 57, to put on record in this debate that, before the Bill becomes law, suitable statutory guidance will be published to limit the exercise of these powers to that small minority of cases in which a very high threshold of wrongful behaviour has been reached; and, further, that reports on the exercise of these powers will be compiled and made available to your Lordships’ House at least annually, so that we can detect any tendency to abuse the powers that the Bill would enact.

Lord Alton of Liverpool: My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Manchester and to support the noble Baronesses, Lady Lister and Lady Whitaker, on Amendments 57 and 55ZB, to which I am happy to be a signatory along with noble Lords drawn from right across the House.
The noble Baroness, Lady Lister, set out the arguments for Amendment 57 with her usual clarity. At the heart of her remarks is the compelling case for social justice and the upholding of human rights. Suffice it to say that when it comes to inequalities, this group of people—Gypsies, Roma and Travellers—are in a league of their own. That was the conclusion of the March 2019 report of the Women and Equalities Select Committee. I know the Minister has given a great deal of personal attention to this issue; like others, I put on record my gratitude to her. When she comes to reply, I wonder whether she can tell us what account was taken of that report in framing this legislation and what action was taken to develop the cross-departmental strategy it called for.
The noble Baroness, Lady Lister, noted the absence of any detail still. I simply reinforce her message that the Government should publish and allow a debate on the strategy before implementing Part 4, or at least give a clear commitment as to when the strategy will be published. No doubt Covid will be prayed in aid to justify the delay but, even allowing for Covid, more than two years is simply too long. After all, those same constraints did not prevent the department coming forward with this change of law—or, for that matter, this entirely new Act of Parliament.
I will say a few words in support of the noble Baroness, Lady Whitaker, who in her admirable way has pursued this issue over so long and has encouraged so many of us to join the all-party parliamentary group in which she plays such a leading role. She has rightly pointed to the absence of sites—a point made by the noble and learned Lord, Lord Garnier. How we respond to that is surely about whether to criminalise or incentivise local authorities to do something about it.
The greatly missed Lord Avebury promoted the Caravan Sites Act 1968. As a young city councillor in Liverpool in 1973, I, along with others—some of whom are in the Chamber this evening—pressed for the city council to do something about that Act. We pushed for the opening of a permanent site for Travellers. It is situated in Oil Street, in Tara Park. The Act led to many new sites, but its repeal in 1994 disincentivised provision, and there are now some 1,696 households on the waiting list for permanent pitches in England, while the last funding round secured resources for just two transit sites.
The civilised answer is to make provision, not to introduce draconian, criminalising legislation based on some very dubious legal principles, which seem to me to run contrary to human rights obligations and our duties to contest bigotry and prejudice with solutions—points made by the noble Baroness, Lady Bennett. According to the Equality and Human Rights Commission’s barometer of prejudice, 44% of those surveyed expressed hostile and openly negative feelings towards Gypsies, Roma and Travellers. We should beware of doing anything to reinforce such prejudice and the old tropes.
The noble Baroness, Lady Bennett, reminded us of where prejudice can lead. On 2 August each year, the day on which we recall the Roma genocide, I am always struck that on that very day in 1944 the Gypsy family camp at Auschwitz-Birkenau, the German Nazi concentration camps in the then occupied Poland, was liquidated. It is sometimes suggested that, during the Holocaust, half a million Roma and Sinti perished. At the time of the liberation of Auschwitz, just four Roma remained alive.
In our generation, it is down to us to guard against prejudice, which—I know the Minister would agree—can so easily morph into something worse. That is why the noble Baroness, Lady Whitaker, is right to draw attention to the obvious and inevitable violation of human rights that will occur if this clause remains unamended. As the Bill stands, it both criminalises people and deprives them of their rights under Article 8 of the European Convention on Human Rights, which requires respect for their homes—a point the noble Baroness, Lady Brinton, made—and their private and family life, which by law includes respect for their traditional ways of life. As long ago as 2001, the ECHR ruled that there was
“a positive obligation on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”
I wonder whether the Minister can tell us how this provision achieves that objective.
Since 1995 the UK has been a signatory to the Framework Convention for the Protection of National Minorities, Article 5 of which says:
“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture”.
It is impossible to see how this legislation honours that obligation.
Before Second Reading, the noble Baroness, Lady Whitaker, the noble Lord, Lord Bourne of Aberystwyth, and the right reverend Prelate the Bishop of Manchester, along with myself, published an article in the House magazine pointing out that the way of life lived by the Roma, the Gypsies and the Travellers stretches back half a millennium, long before the enactment of the Enclosure Acts and the agricultural revolution. In this Bill, we intend to overturn the practice of centuries and criminalise trespass and enable the police to seize vehicles, as we have heard, and homes. Imagine the impact on the children of these families as they watch their parents’ possessions sequestrated and their families evicted—and this could be in the very depths of winter.
These amendments point to rank discrimination and are an attack on a way of life. Adequate accommodation for Gypsies and Travellers is a better, more civilised and more humane way to proceed, rather than locking people into endless cycles of criminalisation and evictions. If this amendment is taken to a vote by the noble Baroness, Lady Whitaker, I for one will certainly go into the Division Lobby to support her.

Lord Bourne of Aberystwyth: My Lords, I first of all apologise that I was unable to be here for the Committee on this Bill because of the difficulties of the rail link from Salisbury, which Members will recall. I thank the Minister for making time available to discuss these amendments and this general area. I wish to speak specifically to Amendment 55ZB, which was so well proposed by the noble Baroness, Lady Whitaker, who has done great work in this area, and Amendment 57, where, similarly, the noble Baroness, Lady Lister, proposed it so effectively.
I oppose the provisions on the criminalisation of trespass and Part 4 in general. I do so for several very practical reasons, which I will deal with. First and foremost, it does not deal with the root of the problem: the massive undersupply of sites for Gypsy, Roma and Travellers. I recall this from when I was a Minister; one has only to see around the country the lack of supply of places to know that this is true. I anticipate that the Minister will probably say—because it will be in the brief—that there is a great supply of private places. That is true, but that is a bit like arguing that families on moderate income should be reassured by hotel places in London because there is always a suite available in the Ritz or the Savoy. It does not answer the basic point about the lack of local authority sites. Were they available, this problem would melt away like snow in springtime. That is my first basic point. I do not understand why an attempt has not been made first—before bringing this legislation forward—to deal with that planning aspect and bring legislation forward on that point, as other noble Lords have  said.
The second basic point I want to come to is whether this will make any difference. We have heard from many noble Lords that the police are against this provision—they know very well that it will make no difference. People—victims, I would say—will be moved from site A to site B, then from site B to site C and so on, all the way through to site Z and then back again. It is pointless; it is fruitless; it is costly; it is divisive; it is draconian. We should drop it. It does not help the situation, and it will lead to the police being put in a difficult position in relation to legislation that they do not want. I join other Members in saying that there are many local authorities from across the political spectrum that have come forward with proposals. We have heard about Leeds, but it is true also of Fenland, in Cambridgeshire, which has come up with imaginative proposals for dealing with the shortage of sites. Local authorities should be incentivised across the country to deal with this deep-seated problem.
My third reason for opposing this legislation is perhaps at the root of my real objection, and that is that there is something dreadfully un-British about this. It seems to home in on a community that is, in many ways, the lost minority and lost in plain sight. We have heard reference to the committee on equalities, which presented a report, and what it said was reinforced by the race disparity audit, which was a great initiative undertaken by Theresa May and which led to the talk of this strategy. Indeed, there were meetings: taking it forward for education was Nadhim Zahawi, as a junior Minister, and for health, Jackie Doyle-Price; there were representatives from the Home Office, such as, if I am not mistaken, the then Home Secretary, Sajid Javid, and representatives from justice, pensions and so on. All committees were represented in taking this strategy for legislation forward. I wonder what has happened to that.
The life chances of this minority, as was demonstrated clearly by the race disparity audit, are the least across the board, in every single area—and by some considerable distance. We would not tolerate it for other minorities; why do we tolerate it for Gypsy, Roma and Travellers? It is high time this was dealt with. The Conservative Government committed to doing that, but that was some two and a half years ago; I wonder what has happened on this. I know the Minister well as a friend, and I exempt her from wanting this legislation—I suspect her heart is probably not in it, because it is discriminatory at root, I feel, and not something that a British Government should be doing.
When I was preparing my speech last night, I noticed there was a television programme on, and so I thought that I would take a break. It was the excellent Simon Reeve—some noble Lords might have seen it. He was doing a travelogue on Turkey, and it was very interesting. There was a nomadic minority being moved on. It was wretched, it was sad, and I sat there thinking how proud I was that we do not do it this way. Then I had the chilling thought that we were about to.
I hope we can pull back from this. That is certainly what we should be doing. We are far better than this.

Baroness Greengross: My Lords, I am speaking in favour of Amendment 55ZB from the noble Baroness, Lady Whitaker, which would ensure that Gypsies and Travellers are not evicted from an unauthorised site unless they have refused to go to a suitable alternative site. I note the noble Baroness’s comments that, when she met with the Minister, the noble Baroness, Lady Williams, she was told that the provision of sites for Gypsies and Travellers was a planning matter and that an amendment which dealt with it was not for this Bill.
On 4 November, the Minister, the noble Lord, Lord Greenhalgh, in response to my question highlighting that only eight local authorities out of 68 in the south-east of England have identified a five-year supply of specific, deliverable sites for Gypsies and Travellers, responded that it is the responsibility of local planning authorities to make an assessment of the need for both permanent and transit sites and to identify sites in their local plans. The Government are of course correct that this is a planning matter, yet the evidence is clear that this issue has not been appropriately addressed by many local authorities.
This amendment provides some protection for the Gypsy and Traveller communities, as it stipulates that they cannot be forcibly evicted unless they have refused a suitable alternative site. While this Bill is not about planning, we cannot ignore the impact it is going to have, if passed, on nomadic communities at a time when there are too few suitable sites.
It is encouraging to hear that, in Leeds, there have been systems established and sites made available to address this issue. It is even more encouraging still to hear that the noble Lord, Lord Greenhalgh, is taking steps to encourage these types of systems across the country.
This amendment would provide appropriate protection for Travellers and Gypsies, while also ensuring that, where a suitable alternative site is available, this cannot be refused. Further, it highlights why more must be done to encourage local authorities to provide suitable sites for Gypsies and Travellers.

Lord Pannick: My Lords, I have a question for the Minister which is relevant to Amendment 55ZB, in the name of the noble Baroness, Lady Whitaker. The noble Baroness will know that the offence which will be created by new Clause 63 contains a defence in subsection (6), at line 40 of page 59 of the Bill. The defence is that it is open to the Traveller to say that he or she had a “reasonable excuse” for not moving on when asked to. Does the noble Baroness accept that it would be open to the Traveller to say, “I have a reasonable excuse for not moving on; my reasonable excuse is that there is no suitable pitch in the local authority area to which I can go, and it is therefore completely unreasonable on the facts of my case to expect me to move on”? Does the noble Baroness accept that it would be open to the Traveller to present that defence? It is certainly the defence I would advise the Traveller to use, were I representing him or her. If the noble Baroness accepts that that defence in principle would be open to the Traveller, I respectfully suggest that much of the force of the amendment in the name of the noble Baroness, Lady Whitaker, is reduced, because there is a balance in this provision.
I make one other point: I do not myself find it particularly helpful when we are debating these difficult issues—and they are difficult issues—relating to a balance between competing interests for noble Lords to refer to Auschwitz. Let us be proportionate and reasonable about these issues. We have here a difficult question of the rights and interests of the Traveller and the rights and interests of the occupier or owner of land. I remind noble Lords that this criminal offence applies only if it can be shown that the occupation of the land by the Traveller is causing “significant damage”, “significant disruption” or “significant distress”. I understand the concerns, but let us keep a sense of balance and recognise, if I am right in my understanding of subsection (6), that there is a defence open to the Traveller who can show that they have a reasonable excuse—which, so far as I can see, would cover the absence of suitable pitches in the area.

Baroness Bakewell of Hardington Mandeville: My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.
On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:
“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]
While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.
In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.
The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.
As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness  to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that
“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”
There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.

Lord Hope of Craighead: My Lords, there is a lot of force in what the noble Lord, Lord Pannick, said about reasonable excuse. There is a problem, however, in that one would not know that one had a reasonable excuse until one had been charged with the offence. The advantage of the amendment spoken to by the noble Baroness, Lady Whitaker, and others is that it achieves certainty and intercepts the risk of being brought to court to have one’s reasonable excuse determined. Although I tend to agree with what the noble Lord said, it comes too late in the process, and the safest and most secure way of dealing with it is to intercept the process at the beginning, which is exactly what the amendment in the name of the noble Baroness, Lady Whitaker, seeks to do.

Lord Paddick: My Lords, there are two problems here. Because of the behaviour of the lawless few, all Gypsy, Roma and Traveller communities are being stereotyped as troublemakers. The new law creates offences when people trespass on land with vehicles where, among other things,
“it is likely that significant damage or significant disruption would be caused”,
and, again, where
“significant distress … is likely to be caused”.
All GRT people are likely to be criminalised by these new offences because people’s prejudices will result in them anticipating damage, disruption or distress, despite no previous experience of the GRT people concerned, or any other evidence—just their own prejudice. The second problem is that there is no option for many GRT people other than to trespass on land because local authorities do not, and do not want to, provide authorised pitches. Imagine the reaction of motorists if there were no local car parks and double-yellow lines on every road? That is the equivalent of what GRT people face.
That is the reason for these amendments. In the absence of removing the whole of Part 4 from the Bill, we will vote with the noble Baroness, Lady Whitaker, should she divide the House. At the very least, the police should not be allowed to seize caravans when they are peoples’ homes and the statutory duty on local authorities to provide authorised sites should be  reinstated. That is the purpose of my Amendments 55ZC and 55AA. These may be planning issues, but the clerks have ruled that these amendments are within scope.

Lord Rosser: First, I congratulate my noble friend Lady Whitaker on her amendment and on all the work that she and many others have done over a considerable period on the issue we are discussing. I express our support for the amendment, on which her co-signatories have also spoken to great effect. The Caravan Sites Act 1968 laid down a statutory duty to establish authorised sites with funding from central government, but unfortunately the Criminal Justice and Public Order Act 1994 repealed this provision, since when there have been fewer than three authorised sites built in England on average every year. We are now faced with a Bill under which people on unauthorised encampments who do not cause damage, disruption or distress can commit the new offence of
“residing on land without consent”.
I say that because the Bill provides that the offence can be triggered when a person is considered “likely” to cause damage, or that significant distress is “likely” to be caused by their being there.
As has been said, it appears that the police do not support these powers: they say that site provision is the issue. My noble friend’s amendment is, in my view, very moderate. It does not remove the powers but adds the importance of site provision and negotiated stopping places into the Bill. Deputy Chief Constable Janette McCormick from the National Police Chiefs’ Council told the Joint Committee on Human Rights that
“the issue of unauthorised encampments is a planning issue and is an accommodation issue … we as the police are not seeking any additional legislation to deal with that”.
She also said of authorised sites that
“where we have an increasing number of sites, we have a direct correlation with a reducing number of unauthorised encampments.”
In the 2018 consultation on these powers, the National Police Chiefs’ Council said:
“Trespass is a civil offence and our view is that it should remain so ... The NPCC position has been—and remains—that no new criminal trespass offence is required. The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
In evidence to the Commons Public Bill Committee, the National Police Chiefs’ Council said that it
“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 15.]
It also raised concerns about police resources and the police being drawn into this issue. We seem to be in a position with the Bill where the Government are not accepting the advice of the police, but are pulling in extra police resources from overstretched forces and skirting the issue that is really at the heart of this, which is site provision, which our police and local authorities advise is the thing that will actually make the difference.
Let me make it clear, as others have done, that damaging and harmful behaviour is totally unacceptable, and that landlords and local communities need protection and police support where it happens. It is already a criminal offence for a person to fail to leave land where the police direct them to, when their behaviour has caused damage to land or property or been abusive or threatening. Presumably, that is why the police say that they already have the powers that they need, based on behaviour.
As I said at the beginning, my noble friend Lady Whitaker’s amendment is very moderate. It does not oppose the powers and will not remove the powers from the Bill but would simply add a need to look at the issue of site provision and the successful model of negotiated stopping places. Let us be clear that it provides that the powers under this section can be used only where there is a suitable local pitch for people to be moved on to or a negotiated stopping site can be arranged within 48 hours. It defines a negotiated stopping site as a location temporarily agreed on with the local authority where people can stay, subject to conditions including
“behaviour … length of stay and payment for water … and other utilities.”
It thus specifically deals with the issue, raised repeatedly by the Government, where some people may refuse to use sites that are available.
The cross-party Joint Committee on Human Rights said that
“the Government should not use the criminal law to address what is essentially a planning issue”.
I am sure all noble Lords are waiting to hear the answer to the question of the noble Lord, Lord Pannick, as to what is “a reasonable excuse”. If the Government were to accept my noble friend Lady Whitaker’s amendment, far from weakening the Bill, it would give this part of the Bill a significantly greater effect in reducing the number and impact of unauthorised encampments. I hope the Government will be prepared to move on this issue.

Lord Young of Norwood Green: My Lords, I waited because I wanted to hear which amendments our Front-Bench speakers were supporting. I made my views clear in our previous debate on this issue. I was a member of the All-Party Parliamentary Group on Gypsies, Travellers and Roma and I no longer am, because in my view the behaviour of some Travellers—I stress “some Travellers”—was not being publicly condemned. I used the phrase “the 2R formula”: I will absolutely continue to defend the rights of Travellers, but along with those rights, in our society, there also comes the responsibility to behave in a reasonable way.
I congratulate my noble friend Lady Whitaker on her amendment, because at least there is an acknowledgement in it that there are problems with behaviour, and we should recognise that. I thank the noble Lord, Lord Pannick, for his contribution about adopting a proportionate response to this. This is not about dehumanising Gypsies, Roma and Travellers; it is not about taking us back to Auschwitz, and I say that as a non-practising Jew, so I hope my contribution will be taken in this light. There are, unfortunately, real examples of some Travellers behaving in ways that are totally unacceptable. Some, unfortunately, have  been associated with modern slavery. These are cases that have been proven. Others seem to think that it is perfectly reasonable to go around collecting building waste, or other waste, and saying it will be disposed of properly when it will not—it will be dumped. We had this on our own village green.
When somebody says that people are opposed to Travellers, they mean that they are opposed to the unreasonable behaviour of some Travellers. That is what causes a lot of it. Of course there are examples of people who are prejudiced, but we should not generalise on this issue. I have some sympathy for my noble friend Lady Whitaker’s amendment and that of the noble and learned Lord, Lord Garnier, who has genuinely tried to find a way forward on this.
I thank the Minister; we had a useful meeting, and I suggested to her that one thing that could be done is to set up local liaison committees—they may exist already—which would involve representatives of Travellers, residents and local authorities. I have not tried to define specifically what they would be but there certainly needs to be more contact and communication between the groups. It would be useful if the Minister could give some examples of what she considers best practice around the country; I believe some examples have been usefully quoted.
A minority of Travellers behave in ways that are unacceptable to communities. If that behaviour could be stopped or condemned, I think there would be a totally different attitude within communities. It is about proportion, about getting the balance right. Have the Government got it absolutely right? I am not sure—I am waiting to hear the Minister’s response—but polarising the debate in this House as some have done by saying that it is all based on people’s innate prejudice and discrimination against Travellers does not help.
There is a genuine problem, and it may be that the Government’s solution is not absolutely right. I was interested in the comments of the noble Lord, Lord Pannick; I might have known that he would put his legal finger on it when he asked whether, if someone was behaving reasonably and gave an excuse that there was no other stopping place, that would be considered a reasonable response in the circumstances.
I look forward to the Minister’s reply. I hope my noble friends will recognise that although I have not entered this debate with the most popular view, I have tried to show that I do not discriminate against Gypsies, Roma and Travellers—far from it. I continue to want to support their rights, but on the basis that they recognise that they too have responsibilities.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken in what has been quite a wide-ranging debate on Part 4 of the Bill. Part 4 delivers on a clear manifesto commitment to tackle the harms caused by unauthorised encampments. I thank the noble Lord, Lord Pannick, for his comments, and agree that equating the measures in this Bill with the atrocities committed in Nazi Germany is, quite frankly, disgraceful. I will not take an intervention until I have finished my point. Any noble Lord who thinks that I would stand at this Dispatch Box and promote anything that had even a sniff of that is quite wrong. I give way to the noble Lord.

Lord Alton of Liverpool: I thank the Minister. I hope she will read Hansard carefully in the morning. She will see that I did not equate this Bill with what happened in that period. I said that, when prejudice is inflamed, it can morph into terrible things; historically, we know that to be true. That is all that I said—I did not say that that is what the Government are doing. I do not like what the Government are doing in Part 4. I support the amendment, and I gave very good reasons for that.

Baroness Williams of Trafford: My Lords, it is interesting that the noble Lord thinks that I was referring to him. I said that the comments of noble Lords who equated this with the atrocities of Nazi Germany were, quite frankly, disgraceful. I did not name him. It is interesting that he thinks it might have been him to whom I was referring.
We have brought forward the measures in Part 4 because we understand the challenges that many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses and landowners. It is important to remember why we are introducing a new offence: to tackle individuals who cause significant harm. This could include unauthorised encampments within urban areas set up in local parks, car parks or on local sports fields. It could include fly-camping which is a huge problem within national parks and our natural beauty spots, where people park cars, campervans or motorhomes on land without permission and damage the land.
It is also important that we consider the people impacted by these harms. I will provide two examples. During the summer, facilities at a recreational site in Highworth in Wiltshire were off limits due to a safety hazard caused by an unauthorised encampment that left behind human excrement. In the same month, a cricket club in the New Forest was forced to cancel its games after a lock on the gate to the pitch was cut and an unauthorised encampment was then set up. The pitch was damaged, rubbish was left behind—and it was the members of that club who had to deal with these consequences, and the fear that this could happen again, with no ramifications for those causing the harm.
The Welsh National Trust pointed out that a Carmarthenshire beauty spot continues to be blighted by problems of human waste, vandalism and unlawful overnight encampments. Just this year, campers with portable angle grinders recently cut the lock on the service access gate to a beach and set up camp on the landscape, leaving the beauty spot strewn with litter and waste. The beach and surrounding area have also been subject to illegal felling and overnight parties, and footpath gates and posts have been chopped up and used for campfires. These problems have been going on for several years. I ask noble Lords: should those who commit significant damage such as this get away with it?
As I have said throughout the passage of this Bill, these measures do not target the Gypsy, Roma and Traveller community. As such, we believe that the measures are compliant with the ECHR and Equality  Acts. I hope that the examples that I have given illustrate that. Enforcement will not be based on ethnicity or race; instead, the measures are focused on significant harms committed by anyone residing on land without permission.
The noble Lord, Lord Alton, asked about the extent to which the proposals take into account the Women and Equalities Select Committee report. We remain committed to tackling the serious disparities faced by the Gypsy, Roma and Traveller communities. We commend the value of the committee’s report and findings. We also seek to develop proposals addressing the levels of violence against women and girls. However, people engaging in harmful behaviours is a separate matter to the wider equalities strategy.
It is important to recognise that this is not a “catch all” piece of legislation; instead, the threshold for the new offence is high and is a proportionate means of addressing this issue. As such, there a few key points that I would like to clarify before I move on to the amendments. Setting up an unauthorised encampment in and of itself will not be a criminal offence. A person will not be caught by the offence if they leave the land when asked but will be caught if they return to the land. A person will not be caught by the offence—and this is the most important part—if they do not commit significant damage, disruption or distress. If they do commit damage, disruption or distress that is not significant, the amended powers under the existing Section 61 of the Criminal Justice and Public Order Act 1994 will come into play. These measures are therefore designed to proportionately deter and prevent particular behaviours.
I turn now to the amendments. Amendments 55ZA and 55ZB tabled by my noble and learned friend Lord Garnier and the noble Baroness, Lady Whitaker, have many overlapping features. They seek to provide that an offence is committed only when a person is trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site. Site provision and harmful behaviours are two quite separate issues. On the question asked by the noble Lord, Lord Pannick, the facts of the case will determine whether an excuse is reasonable—this will be for the police and courts to determine—but it is not open to Travellers to say that they have any reasonable excuse to destroy property or land. There is no justification whatever for causing significant harm, disruption or distress. The lack of availability of a pitch, be it on a permanent authorised site or a negotiated stopping site, can never be an excuse for such conduct.
As I said, the fact of the unauthorised encampment is not in and of itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and those harms should incur enforcement action in the way that any other harmful behaviour would.
My noble and learned friend’s amendment goes one step further and would require local authorities to pay landowners for any damages caused by people on unauthorised encampments in areas where there are no other suitable sites. This would give a message to those who commit harmful behaviours that they should not worry about any repercussions as the local authority  will pay for the damage caused. This is not a message that this, or, I believe, any Government, would want to send out.
Amendment 57, in the name of the noble Baroness, Lady Lister, would delay the implementation of the measures and potentially allow cases of significant harm to continue until there is a report and a debate in each House that discusses how Part 4 contributes to the level of entrenched inequality experienced by Gypsy, Roma and Traveller communities. She knows that I do not accept the premise of the amendment. I know why she has tabled it: namely, that these measures contribute to the inequalities experienced by GRT communities. As I said, the debate around inequalities and site provision is separate to the issue at hand, which is dealing with significant harms.
To get to the point that the noble Baroness is actually making, which is on the GRT strategy, she will be even less impressed by me tonight when I say that Ministers are currently developing their priorities with regard to the strategy. The levelling-up agenda will see opportunities increase for everyone by improving livelihoods across the country, supported through schemes such as the GRT education areas pilot fund and the levelling-up fund. I am afraid I have no more to add than I did last time: that my ministerial colleagues are currently developing their priorities around the work of the GRT strategy. Until that work has been completed, it is too soon to say what will be included in the strategy. I thought she might shake her head.
Amendment 55ZC, in the name of the noble Lord, Lord Paddick, would exclude vehicles that are a person’s home from the seizure power found in Clause 63, which enables property to be seized from individuals committing an offence under these new provisions. Seizure powers are not novel when it comes to enforcement action against unauthorised encampments. They are already conferred on the police in relation to a person’s failure to comply with a police direction to leave land under the trespass provisions in the Criminal Justice and Public Order Act 1994. It is right that the police should have an equivalent power in the context of the new criminal offence, where the level of harm is significant, for the offence to be committed before police would consider using, and are able to use, seizure powers.
As I said, if people do not commit significant harms or if they leave when asked, they will not be caught by the offence and will not risk having their vehicle seized. Without the power to seize vehicles, enforcement action is likely to be hindered and the harms can continue while people and their property, including their vehicles, remain on the land.
Police decisions to seize vehicles should continue to be taken in consultation with the local authority where appropriate. As is the case for existing powers, to which these new measures add, the local authority would need, where possible, to offer assurance that it has relevant measures in place to meet any welfare and safeguarding needs of those affected by the loss of their accommodation, particularly the vulnerable, before police take enforcement action. We expect the police to continue to undertake any enforcement action in compliance with their obligations with regard to equalities and human rights, and will continue to consider harm  to local amenities and the local environment, and the rights of nearby residents, when coming to a view as to appropriate enforcement action.
Finally, Amendment 55AA would reintroduce a statutory duty on local authorities to provide authorised sites for Gypsies, Roma and Travellers. As I said in a previous debate, site provision and the issue of how we deal with people who cause harm are two separate matters and should not be conflated. The Government’s aim more generally is to increase the provision of Traveller sites in appropriate locations and to maintain an appropriate level of supply, but that should not hinder the introduction of these important powers to safeguard individuals and their property from harm.
The planning system, taken as a whole, is capable of meeting the needs of the Travelling community. It is designed so that the land use and accommodation requirements of all groups, including those who lead a nomadic life, are considered by local planning authorities. Local authorities and social housing providers are able to bid through the £11.5 billion affordable homes programme for funding for new sites. In addition, a statutory duty to provide sites would not be aligned with the current planning system, which does not impose statutory duties on local planning authorities to provide housing or specialist accommodation for any demographic, including those who require affordable housing, and older people.
A number of noble Lords raised the success of negotiated stopping sites in Leeds, an issue touched on in Amendments 55ZA and 55ZB. Again, this is for local authorities to make a decision on. Negotiated stopping sites are not a planning designation, but a local practical agreement between the local authority and Travellers as to where they can reside for a temporary period.
The noble Lord, Lord Young of Norwood Green, has discussed the issue of liaison committees with me. I will take that suggestion forward to my colleagues in DLUHC for their consideration. I am quite happy to be part of those discussions.
The arguments for or against the provisions in Clause 63 come down to one issue and one issue only: is it acceptable for a person to take their vehicle on to other peoples’ land without their permission and cause significant damage, disruption or distress? I know the answer that the British people would give to that question. If noble Lords vote through any of the amendments in this group, those who do so would send a clear message that such behaviour is acceptable. I therefore ask my noble and learned friend to withdraw his amendment.

Lord Pannick: I thank the noble Baroness for answering my earlier question. As I understood her answer, it was that there can be no reasonable excuse for causing significant damage or significant disruption. I point out to her that the defence under new subsection (6) is that the defendant would have a defence if they have
“a reasonable excuse for … failing to comply as soon as reasonably practicable with the request”
to leave. It has nothing to do with whether they have caused disruption, distress or damage; they have an absolute defence if there is a reasonable excuse for not leaving the land when asked to do so. That is why I put  to her that, surely, it could be a reasonable excuse that there is nowhere else they can go. Would she like to reflect on that?

Baroness Williams of Trafford: As the noble Lord probably knows, that will be a determination for the courts to make.

Lord Pannick: I am simply anxious that the matter is not left on the basis that the Minister put it, because I respectfully suggest that that is not right.

Baroness Williams of Trafford: Perhaps we could discuss this further if that is amenable to the noble Lord, but I accept his point that it is not right to just leave it like that. In determining what is a reasonable excuse, it would be for the police and the courts to determine whether the excuse was reasonable.

Lord Garnier: My Lords, 15 noble Lords have spoken in this debate. Most of them have concentrated on amendments other than mine, which is hardly surprising. Three broad points have emerged from this debate which I hope are uncontroversial.
First, there is an undersupply of official local authority Traveller sites. Regardless of quite how far along the pendulum one places this, that must be a reason why there is a high incidence of trespass. The Government say this is a problem and I am sure others do as well, but the more interesting question is, what do we do about it? If I may say so with the greatest of respect to my noble friend, this is not just a planning matter. It is a wider public policy issue, and this Bill turns it into a criminal justice matter. It is not an answer to complain that noble Lords are conflating unlawful occupation and damage. The two may be linked; none the less, they need to be thought about with some degree of care and not by sloganising.
The noble Lord, Lord Pannick, reminded us about Clause 63(6)(a) and (b), which provide for the reasonable excuse defence. I happen to agree with him, and his recent intervention on my noble friend saved me from making a speech of an additional 10 minutes—for which there is much relief. It strikes me that Clause 63(6) provides a second incentive to local authorities to get on and provide more official sites. The first incentive is the compensatory damages which I expect them to pay. Secondly, if they, the police or the CPS seek to rely on the criminal offences described in this part of the Bill, and there are no sites and therefore it is a reasonable excuse, surely, we come back to the fact that there is an undersupply of official sites so please, let us do something about it. I entirely take on board what the noble and learned Lord, Lord Hope, said about the point at which it is realised that this is a good defence. It is not a question of me being righter and you being wronger. It is a question of sorting out the problem sensibly, pragmatically and economically, in a way which does not cause additional, prolonged and unnecessary distress to local residents such as the neighbours of the noble Lord, Lord Young of Norwood  Green, or to the families and children within the Travelling community. It is not impossible. It just requires political will.
I beg leave to withdraw my amendment. What others do with theirs is a matter for them.
Amendment 55ZA withdrawn.

Amendment 55ZB

Baroness Whitaker: Moved by Baroness Whitaker
55ZB: Clause 63, page 59, line 11, at end insert—“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area.(1B) A “negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”

Baroness Whitaker: My Lords, I am extremely grateful to all noble Lords who have spoken so eloquently in this debate. It is of great importance to some very beleaguered communities. I too note the widespread and authoritative emphasis on enabling local authorities to provide enough sites. I understand that the Minister is bound to follow the instruction to implement a manifesto commitment and stick to the disproportionality of Clause 63, but I think we need to strike a better balance. I therefore wish to test the opinion of the House.

Baroness Henig: There being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.
Ayes 171, Noes 171.

Amendment 55ZB disagreed.
Amendment 55ZC not moved.

Amendment 55A

Baroness Bennett of Manor Castle: Moved by Baroness Bennett of Manor Castle
55A: Clause 63, leave out Clause 63

Baroness Bennett of Manor Castle: My Lords, as I indicated in the previous discussion, I feel that this is a moral issue on which a line has to be drawn. I will not rehearse all the debates we had previously, but I want to pick up one point from the Minister, who said that Part 4 does not target the Gypsy, Roma and Traveller community. The Equality and Human Rights Commission said in its response to the government consultation that this is indirect discrimination that cannot be justified. It was of the opinion that this criminalisation of trespass would breach the public sector equality duty. No equality statements have been issued in regard to the proposed new offence in Clause 63, so I would like to test the opinion of the House. It will be up to every individual to judge according to their conscience. I beg to move.
Ayes 71, Noes 167.

Amendment 55A disagreed.
Amendment 55AA not moved.

  
Clause 64: Amendments to existing powers
  

Amendment 55B not moved.

  
Clause 65: Guidance on exercise of police powers in respect of trespassers on land etc

Amendment 56

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
56: Clause 65, page 64, line 43, at end insert—“(6) The Secretary of State must lay before Parliament a copy of any guidance or revised guidance published under subsection (5).”Member’s explanatory statementThis amendment requires the Secretary of State to lay any guidance published under the section before Parliament.
Amendment 56 agreed.
Amendments 56A and 57 not moved.
Consideration on Report adjourned until not before 8.32 pm.

Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021
 - Motion to Annul

Lord Storey: Moved by Lord Storey
That a Humble Address be presented to Her Majesty praying that the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021 (SI 2021/1224), laid before the House on 4 November, be annulled because (1) they will remove vital support for disabled young people, and (2) Her Majesty’s Government have not sufficiently assessed the impact the regulations will have.
Relevant document: 21st Report from the Secondary Legislation Scrutiny Committee

Lord Storey: My Lords, disabled young people need all the support and help that our society can give them. Those disabled young people who have become students—who are learning and want to progress in education and who want to go to college and university—should not be facing barriers. They should not be facing checks and counterchecks, making it as difficult as possible for them to get the financial support that they need. It strikes me as strange that we hear from the Government so many times that there should be no barriers to learning or supporting young people, when these very young people have barrier after barrier against them.
Tomorrow, sadly, the new regulations come into being, and that will have dire consequences for disabled people in education, as they will be prevented from claiming crucial universal credit. The new regulations will prevent disabled people who are receiving education accessing a universal credit claim if they have not established what is called a “limited capacity for work” status before they started receiving education. This effectively means that many disabled people will be unable to receive universal credit if they are in education, which creates the risk that certain groups of young people will be unable to finish their education, limiting their employment opportunities in future.
Of course, this is not the first time that the Department for Work and Pensions has misinterpreted the needs of disabled people. Disability Rights UK stated that 30,000 disabled students could have been affected by the DWP’s misunderstanding of the law which prevented thousands of disabled students from claiming benefits essential for their cost of living in the past seven years. Testimony of numerous disabled students has described cases where education has been put beyond their reach.
In 2013, around 8.6% of higher education students were disabled, yet in an NUS survey from that year, 59% of disabled respondents agreed or strongly agreed that they had been worried about not having enough money to meet basic living expenses, compared to 47% of non-disabled respondents. Only 33% agreed or strongly agreed that they were able to concentrate on their studies without worrying about finances, compared to 45% of non-disabled students, and 55% have already  seriously considered leaving their course, compared with 35% of non-disabled respondents. Among those, 54% reported that it was because of financial problems, 36% because of a health problem, and only 20% that it was because of a disability issue.
Although this data is from 2013, it shows important patterns in the difficulties that disabled students have faced in the past and continue to face today in financing their studies. The current proposed changes will only exacerbate obstacles faced by disabled students in accessing high-quality education, forcing certain disabled students to choose between staying in education, but without being able to access crucial resources in sustaining themselves, and dropping out altogether, which will create immeasurable strain on their current well-being as well as future prospects. Overall, cutting off access to universal credit for many disabled students who are currently in education would create additional obstacles and severely impede the Government’s objective of empowering and supporting disabled people across the UK.
Even before the regulations come into force tomorrow, the current rules make it difficult for disabled people in education to claim universal credit, and the new rules will restrict access even further. Students are caught in an impossible situation; they need a work capability assessment to get a “limited capacity for work” status, but the main way in which to access that assessment is by starting a claim for universal credit, and they need “limited capacity for work” status before they can get universal credit. It is not clear how refusing disabled people means-tested support through universal credit, because they do not have “limited capacity for work” status before receiving education, would support them in achieving their potential or starting, staying and succeeding in employment.
This is not an area of strength for me, and I have struggled to understand many of the issues—so God help those poor students who are trying to work their way through this. In reality, the regulations will force many young disabled people who cannot go without financial support from universal credit to drop out of education altogether. What the Government are doing is, frankly, appalling: disabled students already face so many barriers to engaging fully in education, and now the Government plan to callously rip away the additional support offered by universal credit. This truly is penny-pinching of the worst kind. As Child Poverty Action Group has warned, this change in the rules will close off the only route for young disabled learners, meaning that many could be forced out of education altogether. We need to support and empower everyone living with a disability to achieve their full potential, not pull the rug out from underneath them. I beg to move.

Lord Shipley: My Lords, during this year, I have been chairing the Youth Unemployment Committee. The day after the publication of our report Skills for Every Young Person a couple of weeks ago, I received some comments on the sections relating to disabled young adults concerning the impact of this statutory instrument on the report’s objectives. The context of our report was that, while there was a range of mechanisms in place to support young people with  additional needs, the recent Plan for Jobs had no targeted support for people with disabilities. We said that, as part of their forthcoming consultation on strengthening pathways to employment for disabled people, the Government should consider grant funding for a jobs guarantee for unemployed disabled young people.
Meanwhile, quite separately, this statutory instrument has been tabled, and it is very worrying because it is not a minor change. The assessment for a limited capability for work determination now must be made before the young person becomes a student. Only then are they entitled to universal credit. That, as my noble friend Lord Storey has made clear, is a significant change. I hope that the Government will reflect on how this position has been reached, not least because this proposed change in benefit entitlement has not been subject to parliamentary scrutiny.
Those affected are, first, young disabled people aged 16 to 19 and those with long-term health conditions who previously would have been able to claim universal credit in their own right. Secondly, it affects those young disabled people or those with long-term health conditions who are in advanced education: typically 18 to 23 year-olds attending university. Thirdly, it affects those who continue in non-advanced education but who cannot qualify for help because of their age. There has been no published impact assessment, but because individual circumstances can be complex, there might be a wide variety of impacts that should have been properly analysed and still should be, and the information shared. I regret very much that this has not been done. As my noble friend Lord Storey said, young disabled people face multiple barriers, and these regulations should not be adding to them.

Baroness Bennett of Manor Castle: My Lords, this important Motion really deserves attention: the noble Lords, Lord Storey and Lord Shipley, have set out the case very clearly. The Government often express great concern about productivity and unemployment, and stress their belief in the importance of education. Of course, we talk very often in your Lordships’ House about the skills shortage and how we have to fill it in; but what we have here is a change carried forward, as has been outlined, in an utterly inappropriate way. It will deprive people—mostly young people—who are seeking to make the most of their skills, talents and abilities of the means to move forward; they will be put in a position where that is simply no longer possible. It is worth thinking about how incredibly dispiriting that is for each individual affected. They will find themselves in this situation when they thought they were doing everything right—everything that society had been telling them that they were supposed to be doing—and now face the disappointment of their parents and families, who see this opportunity being snatched away.
I have put this in the Government’s own terms: what will this do for the economy and for GDP? However, I would also put it into broader, green terms. We face economic, social, environmental, political and educational crises. We have a huge shortage of human resources capable of solving all those problems that are facing us. We need to ensure that every individual in our society is allowed to develop to their full potential.
The Government would possibly be disappointed if I did not point out that, if we had a universal basic income, this situation that would not arise. If people had the chance to meet their basic needs so that they could decide for themselves how best to use their skills and talents, we would see a far more healthy and productive society, because individuals would be far better placed to decide how they could best use their time. I would have thought that the Government might agree that it is not the state that should determine how individuals should spend their time and talents. It is disappointing that we are not going to see a larger debate here: it certainly deserves it, but I repeat my thanks to the noble Lords, Lord Storey and Lord Shipley, for setting out the case.

Baroness Sherlock: My Lords, I thank the noble Lord, Lord Storey, for introducing his Motion and all noble Lords who have spoken. I reassure the noble Baroness, Lady Bennett, that while this may not be a large debate, with my help it may be slightly longer than it might otherwise have been. The reason for that is, as the noble Lord, Lord Storey, said, that this is a very complicated area. I want to set out what I think has got us to this point and invite the Minister to correct me if I am wrong, because it is important that we get that down on the record. I am grateful to the Secondary Legislation Scrutiny Committee, which noted that the concept behind these regulations had been “poorly explained” in the first version of the Explanatory Memorandum, and asked the DWP to reissue it. That has helped us.
The rules specify that, to claim universal credit, there is a broad condition that you must not be receiving education—but Regulation 14 of the Universal Credit Regulations 2013 says that there are some exceptions. They include young people living independently doing A-levels or the like; those who are responsible for kids; and some disabled people who get attendance allowance, disability allowance or PIP and have limited capacity for work. All Regulation 14 does is remove the blanket requirement that you must not be in education to get universal credit. It does not stop people in those groups from facing conditionality, but disabled people in that third category—with limited capability for work—were able to get universal credit while studying.
However, there was a judicial review last year, instigated by two disabled students on the grounds that, before rejecting their claims for universal credit, the DWP should have determined whether they had limited capability for work. In the end, the Government did not defend the claim. What they did instead was to introduce the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020. Those regulations amended the 2013 regulations so that a disabled student would be eligible for universal credit only if they were classed as having limited capability for work before they started education; or if they were already in education before they made a claim for universal credit. What is happening here is that the DWP now says that those regulations were deficient because they permitted a workaround: namely, that if a disabled student makes an application for new-style ESA—contribution-based employment  and support allowance—and supply medical evidence, they will automatically be referred for a work capability assessment, which could lead to them being classed as having limited capability for work. They would then be entitled to claim universal credit. The Government therefore brought forward these regulations to stop that workaround as well.
I have some questions. First, will the Minister say whether that is an accurate description of where we are? He can nod if he wishes. I can see him nodding: that might be a gesture of trust on his part, but I definitely note his nodding. I am sure the cavalry will arrive to reverse that nod should it prove to be an ambitious and premature nod.
Secondly, can we establish the size of the problem we are dealing with in this workaround? How many such cases were there last year or in the latest period for which figures are available? I tried to find this out myself, but the data do not seem to record student status. However, using age as a proxy—it is not a bad proxy for this population—I went poking around on the data on Stat-Xplore, and I think that the answer is that there are very few cases indeed. If I read it correctly, in the quarter to May, there were only 39 people aged 21 or under in the support group of new-style ESA. Can the Minister say if that seems right?
Thirdly, what is the effect of this latest tightening? If I have understood it aright, these latest regulations mean that no disabled student will be entitled to claim universal credit unless they have been deemed to have limited capability for work before they start their course of education. Even someone in that tiny category—someone who claimed new-style ESA and was classed as having limited capability for work—would be entitled to universal credit only if that happened before they started their course.
What will that mean? Like other noble Lords, I have had representations, particularly about the position of young disabled people. The Child Poverty Action Group says that the current workaround is used by some young people who are over 19 but still in basic education. Their parents can get support and universal credit for them, but that stops at the September following their 19th birthday. If this workaround is removed, the only option for these young disabled people would be to apply for universal credit in their own right. There is then a risk that they would not be allowed to carry on with their studies, unless their work coach decides that carrying on studying, even in basic education, is their best chance of getting a job.
The charity Contact says that some young people who have reached the September after their 19th birthday and are on non-traditional courses, such as life skills, may be able to convince their work coach to treat them as though they are not receiving education and thus get universal credit. However, Contact is worried that those who have not reached the milestone of the September after their 19th birthday are now at risk of being shut out of universal credit altogether. Can the Minister say what will happen to them?
I will give one brief example from Contact of a woman called Doreen, who said:
“Our grandson is 21 and lives with us, his grandparents. Our grandson is in full time education at an autism specialized college with an EHC plan. He’s been getting Universal Credit since he  was 17. That’s his financial income to enable him to stay in full time education to get the qualifications he needs for possible future employment. Without Universal Credit he wouldn’t have been able to continue his education at his specialist college.”
Can the Minister say what would happen to someone in those circumstances?
CPAG warns that the regulations could stop disabled people moving from college or school to university. It takes four months on average to get a work capability assessment, so how could people do that before starting university? Or is the intention that they should not, because they should rely on loans and grants?
Finally, if the Government are legislating again simply to deliver on the original policy intention of the 2013 regulations, which they say they are, why has it taken eight years, judicial review and three sets of legislation to get to that point? How confident is the Minister that we will not be back with a fourth set of regulations next year? There is of course another JR making its way through the system at the moment.
This is the latest iteration of an issue that crops up often, most recently during the passage of the Skills and Post-16 Education Bill, which a number of us were involved with. It is a tension between the DWP and DfE as to who supports certain categories of people going through education. Here, the DWP is claiming that disabled students are just like any other students and that, if they want to go into education, they should get grants, loans and bursaries like any other student.
However, as CPAG points out, many students now have to work to supplement any grants or loans they receive to get through their education. Many disabled students would find it much less easy to work alongside their course. Treating people the same does not always leave us in the best position.
Given the state of the disability employment gap, surely we all want to do everything we can to help disabled people get the education they need to get on and get a job in the future. The noble Baroness, Lady Bennett, is absolutely right: we should invest in all our people to enable them to fulfil their potential.
I think the Minister is unlikely to accept the Motion in the name of the noble Lord, Lord Storey, given that it is a fatal Motion and the convention in this House is that we do not support Motions that will annul regulations. However, it is crucial that he looks carefully at the issues facing disabled students. Will the Government agree to review all the support provided to them, to see whether it really is possible for them to move on to education and develop as they should? I look forward to his reply.

Baroness Janke: My Lords, we have heard from noble Lords today that a great injustice is about to be perpetrated on young people with disabilities. As we have heard, many young people still in education will be ineligible for universal credit unless they have had a work assessment and been assessed as having limited capability for work
“before they started receiving education”.
The noble Baroness, Lady Sherlock, has explained the background to this sad state of affairs.
Disability Rights says:
“The new regulations are really bad news for disabled students … Unfortunately they put a legal stamp on what has been the actual operational practice of the DWP that places them in a Catch 22 position.”
The position has been to reject a universal credit claim made by a full-time disabled student who was not previously in receipt of educational support allowance
“on the grounds that they have not been determined to have a LCW”,
or limited capability for work, and then for
“the Universal Credit section to refuse to arrange a work capability assessment to determine if they have a LCW … Even though they may clearly meet the Universal Credit means test if found to have a LCW.”
As the noble Baroness, Lady Sherlock, explained, the way round this is for the disabled student to make a claim for contribution based on new-style ESA, for which they will not meet the national insurance contributions entitlement conditions, having not been in employment and therefore not contributing.
Despite this, the student will get a work capability assessment but, as Disability Rights explains only
“if a LCW decision is made can any means tested Universal Credit entitlement be awarded.”
It continues:
“This torturous route is absurd. Worse, it undoubtedly has the effect of deterring Universal Credit claims by some disabled students. Some will not know to claim NSESA ‘workaround’ … and some may even not pursue their higher education course.”
This is a significant change from the previous system in which disabled people in receipt of disability living allowance or personal independence payments were automatically determined as having limited capability for work.
Furthermore, as others have said, these new regulations were not subject to review by the Social Security Advisory Committee or any equality impact assessment before being issued. As Disability Rights notes, they
“cast doubt on the Government’s commitment to ensure disabled people’s access to education. In addition, they will in turn cast doubt as to the Government’s commitment to increase the number of disabled people in employment.”
It is worth reminding ourselves of extracts from Shaping Future Support: The Health and Disability Green Paper, in which the Government say:
“Our first priority is to support disabled people and people with health conditions to live independently and achieve their potential. This means that people should be provided with the right amount of financial support, given the opportunity to make their own choices, have equal access to services, be supported to access healthcare and treatment, and be able to participate in society on the same basis as other people.”
How can these new regulations support these objectives and why were they not scrutinised by the Social Security Advisory Committee? Why was no equalities impact assessment carried out? I hope the Minister can help us with answers to these questions.
This change will severely affect disabled young people who reach the age of 19 before finishing non-advanced education and those continuing to higher education. Many young people with impairments will take much longer to finish their full-time education and will be forced to make an impossible choice between trying to continue without access to the benefits they need or  dropping out of education and losing out on future employment opportunities. The reality is that these regulations will force young disabled people who cannot continue their education without financial support to drop out. This also affects families and care givers, as their care responsibilities increase if the disabled young person they care for is not in education.
As many noble Lords have said, this measure is unfair and unjust, and it severely restricts the life chances for young people with disabilities. I hope, although I am not confident, that the Government will think again. We need to give a fair deal to young disabled people who only want the chance to achieve their potential, as the Government say, with the right amount of financial support, as the Government say, and to participate in society on the same basis as other people—as the Government say. I am not confident, but I hope the House will support this Motion.

Earl of Courtown: My Lords, I thank noble Lords for their contributions to this debate. The noble Baroness, Lady Janke, mentioned scrutiny and I will just deal with that quickly. These regulations were subject to scrutiny by the Social Security Advisory Committee on 15 October this year.
In closing, I assure all noble Lords that the Government are absolutely committed to supporting disabled people and are determined that support should be focused on people who need it most. These new regulations do not reduce the existing support, which is correctly available to disabled students, but rather ensure that this support continues to come from the appropriate source of government funding, which for disabled students, as for all students, is the student support system of loans and grants.
These new regulations do not remove entitlement to universal credit from any existing disabled student currently receiving it, nor from any future claim to universal credit from a person entitled to a qualifying disability benefit, such as PIP, who is subsequently determined to have a limited capability for work and wishes to start a course of education.
I should mention that the Government’s support for disabled students does not end on them completing their education. In our national disability strategy, we have committed to improving disabled people’s everyday lives. We have committed to make available the access to work adjustments passport for all disabled students, including those receiving disabled students’ allowance, when they leave university.
To support the transition from education into work, the Department for Work and Pensions is piloting the adjustments passport. We currently have two universities —Wolverhampton and Manchester Metropolitan—piloting the adjustments passport with the aim that a third will come on board in January.
The adjustments passport will provide students with a disability or health condition with an up-to-date record of the adjustments they are using and any future in-work support needs they may have. It will reduce the need for the student to repeat details of their disability and how it could affect them in work and reduce the need for a holistic assessment where the needs are documented.
The adjustments passport will provide a clear gateway of adjustment support by raising the visibility of support available for each stage of the transitions journey. It will also provide a transferable record of adjustments that can be used to support the adjustments journey and reduce the need for assessments. In addition, it will include a communication tool to support discussions with employers. It also gives visibility of in-work support if an employer employs a disabled person, and assurances and support to progress in work. It will also support potential employers by documenting the in-work support the student requires and the possibility of support the student could receive. It will also help to raise awareness of the Access to Work scheme and the support it can provide.
We recognise that talking about workplace adjustments can be difficult. To support and empower the student, the passport can be used as a communication tool to enable them to have a more structured and confident conversation about their disability and the adjustments they need with employers. Knowing what support is available for every stage of the transition journey will help to empower young disabled people to have confidence that their support needs are captured and aspire them to achieve their goals and chosen career rather than limiting their choices.
Once in employment, the passport would continue to add value by supporting progression and enabling disabled people to transfer between job roles more easily by increasing portability of support and reducing the need for reassessment where job roles or needs are similar.
Furthermore, a range of other DWP initiatives is supporting disabled people to prepare for, to start, to stay and to succeed in work. These include the Work and Health programme, the Intensive Personalised Employment Support programme, the Access to Work scheme, Disability Confident and support in partnership with the health system, including employment advice in the NHS Improving Access to Psychological Therapy service.
In 2021, the health and disability Green Paper, Shaping Future Support, explored how the welfare system can better meet the needs of disabled people and people with health conditions now and in the future to build a system that enables people to live independently and move into work where possible. The national disability strategy aims to ensure that all disabled people can play a full role in society. The strategy takes into account the impacts of the Covid-19 pandemic on disabled people, with focus on the issues that affect them the most, including employment.
I turn to the points raised by noble Lords. I will do my best to answer all the queries and if not, will of course write to noble Lords and put copies in the Library. The noble Lord, Lord Shipley, and the noble Baroness, Lady Sherlock, talked about the closed-off route to universal credit. While closing the NSESA route leaves no direct path to claim universal credit for some disabled people who are already in education, in doing so this recognises that all students, including disabled students, have access to the support system, which includes support that recognises a person’s disability, such as the disabled students’ allowance for those in  higher education, and discretionary bursaries and grants if undertaking further education. Disabled students also have access to other funds from their colleges. I will need to clarify that point.
The noble Lord, Lord Shipley, was basically saying that the regulations were a regressive change. This amendment to the regulations simply maintains the current policy intent: to allow those entitled to personal independence payments or disability living allowance who are already assessed as having limited capability for work to take up or continue in education, with the intention that it may help them into work in the future. The new regulations do not reduce the existing support currently available to disabled students, but simply ensure that this support comes from the appropriate source of funding, which is the student support system of loans and grants. These new regulations do not remove entitlement to universal credit from any existing disabled student who is currently receiving it, nor from any future claim to universal credit from a person who is entitled to a qualifying disability benefit, such as personal independence payments, who is subsequently determined to have a limited capability for work and who wishes to start a course of education.
The noble Baroness, Lady Bennett, asked why the Government did not do a full impact assessment. An equality analysis was completed and shared with the Social Security Advisory Committee for its consideration. The noble Baroness, Lady Sherlock, also looked at the impact on students in further education with special educational needs and disabilities. Although the maximum allowed duration of a course is 12 weeks, if the work coach considers that the course is compatible with the person’s work-related requirements, they are referred for a work capability assessment and, if subsequently determined to have limited capability for work, there is then no limit to the duration of any subsequent course of training or study which a work coach considers will give the person the best chance of securing work. Additionally, if the person is entitled to a qualifying disability benefit, such as the personal independence payment, they will continue to be entitled to universal credit, as they will now meet the disabled student exception.
The noble Baroness, Lady Sherlock, also mentioned the position of those young people. The condition of entitlement to universal credit is not to be receiving education. Moreover, there are some exceptions, for example, the responsibility of a child entitled to DLA/PIP and already having a determination of LCW. Therefore, most young people, such as those in sixth form colleges, will not be entitled to universal credit as they are already in full-time education. To be entitled to universal credit, disabled students must not be receiving education, already be entitled to a qualifying disability benefit, and already have a determination of LCW through a WCA.
The noble Baroness, Lady Sherlock, mentioned that there had been a number of SIs relating to this and a number of amendments. The Government are committed to supporting disabled people. These regulations ensure that disabled people get support from the correct source of funding—mainly from student finance, as I said earlier.
The noble Baroness also asked about the numbers involved. It is difficult to give any firm evidence through the data. The data on how many disabled students have been using the new-style ESA workaround to meet the entitlement conditions for UC is very limited, but numbers are considered to be relatively small. I cannot go any further on numbers than that at the moment but, if there is anything more I can add, I will of course write to the noble Baroness.
In summary, while it is the case that the amending regulations will close the workaround and end an unintended route to universal credit that a relatively small number of disabled students have been using, the new regulations do not reduce the existing support currently available to disabled students. The new regulations ensure that support continues to come from the appropriate source of government funding, namely the student support systems of loans and grants, which includes support that recognises a person’s disability. I therefore ask the noble Lord, Lord Storey, to withdraw his Motion.

Lord Storey: I thank all Members for their careful, considered comments, and particularly the noble Baroness, Lady Sherlock, for her thorough explanation of what young disabled students face. Her invention of the ministerial nod is something we should perhaps use in future.
I was very interested in the comments of my noble friend Lord Shipley as chair of the Youth Unemployment Select Committee, which has just produced its report, and of the noble Baroness, Lady Bennett, about that impact assessment. We need to see that and understand it in future deliberations. My noble friend Lady Janke of course talked about the injustice we all face.
This matter is so important, as education would improve disabled students’ employment prospects but also their feeling of well-being and of being part of a community. Of course, it also has some unforeseen consequences. For example, it affects the ability of family care givers to work, as their care responsibilities increase if a disabled young person they care for is not in education. Both the carer and the disabled young person will be worse off as a result.
The Minister said in his closing comments that disabled people will get the funding support they need and that new regulations do not reduce existing support. Those are very powerful words. I am minded to test the opinion of the House on this. However, if the Minister can give me one of these new-found ministerial nods to say that we can perhaps review the situation and see how his comment that every young person will not get their funding reduced is working out, I am happy to have that opportunity to have a proper discussion and debate about this. I am a little disappointed that so few people were able to be in the House for this important debate.
In June 2021, Flinn Kays, a disabled psychology student who receives the enhanced rate of both the mobility and daily living components of the PIP, which the Minister talked about, was granted permission to apply for judicial review of the 2020 regulations. He calculates that he may be entitled to around £900 a month in universal credit but, due to the 2020 regulations, his universal credit claim was refused and he was not  invited to a work capability assessment. There is no date yet for the judicial review, but when that reports it might be a good time for us to come back and debate this whole area, so that we see that, as the Minister said, every student gets the funding they need.
Motion withdrawn.
Sitting suspended.

Police, Crime, Sentencing and Courts Bill
 - Report (2nd Day) (Continued)

Clause 66: Causing death by dangerous driving or careless driving when under the influence of drink or drugs: increased penalties

Amendment 58

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
58: Clause 66, page 65, line 13, at end insert—“(3A) Section 34 of the Road Traffic Offenders Act 1988 (disqualification for certain offences) is amended as follows.(3B) In subsection (3), in the words after paragraph (d)—(a) after “the offence” insert “(“the new offence”)”;(b) for “three years” substitute “the period specified in subsection (3A)”.(3C) After subsection (3) insert—“(3A) The period is—(a) six years, where—(i) an offence of which the person was convicted within the ten years mentioned in subsection (3) falls within paragraph (aa) of that subsection, and(ii) the new offence also falls within that paragraph;(b) in any other case (but subject to subsection (4ZA)), three years.”(3D) In subsection (4)—(a) in the words before paragraph (a), after “(3) above” insert “and subsection (4ZA) below”;(b) in paragraph (a)—(i) omit sub-paragraph (ii) (and the “or” after it);(ii) in sub-paragraph (iia), for “that Act” substitute “the Road Traffic Act 1988”;(iii) omit sub-paragraph (iii) (and the “or” before it, but not the “and” after it).(3E) After subsection (4) insert—“(4ZA) Subsection (1) shall apply as if the reference to twelve months were a reference to five years in relation to a person convicted of—(a) an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), or(b) an offence under section 3A of that Act (causing death by careless driving when under the influence of drink or drugs),but this is subject to subsection (3) in cases within paragraph (a) of subsection (3A).””Member’s explanatory statementThis amendment increases minimum disqualification periods for offences under sections 1 and 3A of the Road Traffic Act 1988.

Baroness Williams of Trafford: My Lords, keeping our roads safe is a key priority for the Government. Too many innocent road users are killed or injured by the reckless actions of a minority of selfish and uncaring drivers who simply do not understand or appreciate the responsibility that comes with holding a driving licence. We can and must do more to force home the message that holding a driving licence comes with a serious level of responsibility. If drivers are prepared to ignore their responsibility, we will use the law to ensure that they are removed from the roads.
We listened carefully to the passionate and well-informed opinions voiced by noble Lords during the Committee stage debates on road traffic offences. Against that background, we reflected with great care on what change we might make to the Bill to further the cause of road safety. Our deliberations have resulted in the Government tabling Amendment 58, which I am confident will improve road safety.
The amendment focuses on two of the most serious road traffic offences: causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. These cause untold grief to many families every year. Both involve a degree of recklessness that is completely unacceptable. Elsewhere in this Bill we are increasing the maximum sentence from 14 years to life for these offences.
This amendment reinforces the seriousness with which the Government regard these two offences by increasing the minimum period of disqualification from driving for anyone convicted of them. In the case of causing death by dangerous driving, the amendment increases the minimum period of disqualification from two years to five years. In the case of causing death by careless driving when under the influence of drink or drugs, the amendment also increases the minimum period of disqualification from two years to five years. But it also goes a step further in respect of this offence. The amendment maintains the existing principle of having a longer minimum period of disqualification for a repeat offence of causing death by careless driving when under the influence of drink or drugs, raising it from three years to six years.
I recognise that depriving a driver of his or her licence for at least five years is a substantial sanction, but when a driver causes the death of another person by driving dangerously or carelessly because of drink or drugs, I think we are fully justified in saying that those drivers should be taken off the road for a substantial period of time. This amendment should act as a serious deterrent for drivers—a warning that driving so dangerously or carelessly as to cause the death of another person is completely unacceptable and will have serious consequences, not only for personal liberty but for the ability to continue driving.
There will remain within the law an element of discretion for judges. They will be permitted to impose a disqualification that is less than the minimum period of five or six years, or not to impose a disqualification at all where there are special reasons for doing so. This allows judges to deal with the unique circumstances of any case before them, which is an important element of our judicial system.
A number of other road traffic-related amendments in this group put forward by the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, raise important issues, but the nub of it is that the sponsors of these amendments want to see a wider review of road traffic legislation. I can advise noble Lords that the Department for Transport is currently scoping a call for evidence on changes to road traffic offences. I will say more when winding up, but, for now, I beg to move.

Lord Berkeley: My Lords, I will speak to the various amendments in this group. I first thank the Minister for arranging two meetings with her colleagues, one in Transport and one in her department, which were very helpful in sharing our concerns—I am speaking from briefings from a large number of groups that are concerned about road safety generally. As a result, we reached some quite good conclusions about where things are going.
Amendment 58 is a good start, so I do not need to spend too long speaking to some of the other amendments. Although it is a welcome start, I also welcome the much wider review that the Minister mentioned. The issue with that review, which comes under my Amendment 65, is that it could cover an enormous scope of issues. We can all think of things about road safety that should be improved—the legislation and the penalties—and it covers some of the issues which will probably come up later today in considering other amendments. I am pleased that the review is starting in January, but I hope that the Minister will be able to say a little more about it. How long it will take? Who will be involved? Will the Government welcome input from people outside—from your Lordships’ House, from the other place and from other groups? Will a report be published with all the evidence? One hopes so.
If that is the case, the next thing, of course, is the legislation needed to implement those. Some of it may require primary legislation; some of it could perhaps be done by secondary legislation. But, again, that needs to be looked at. Perhaps when the Minister responds at the end of this grouping, she could give us a bit more detail about that. This is a good start, but there is still a long way to go.
I will speak very briefly, first on Amendment 63. We discussed “exceptional hardship” at some length in Committee. What worries me—it is worth repeating the statistics—is that 8,632 motorists are still permitted to drive despite having 12 or more points on their licence. I will not go into examples, but that indicates to me that something needs to be done. I do not know whether the Minister has considered it, but in advance of and separately from the review, would it be possible for Ministers to look again and consider revising or amending the sentencing advice to magistrates, so that this was tightened up a bit? I think she will agree that 8,000 such people driving around, having decided that having their car is essential to take their dog for a walk, is probably rather more than one would want to see.
Turning now to Amendment 64, on failure to stop and report, we got into quite a significant debate about that and the relationship between the circumstances  and the penalties. What worries me is that, since 2017, the number of people convicted of this offence had gone up by 43% in four years. I do not know why that should be—maybe the Minister has some answers to that—but it indicates that failing to stop and report collisions is quite serious. We discussed in Committee whether that was due to more people having mobile phones or whatever, but this is another of those things I would ask her to look at in advance of the review. If she can, what timescale would that entail?
I think I have probably spoken enough about the review itself. We are grateful for the review. The list of issues I put in the amendment is just a sample, and I am sure many people will have many other things to put in. But if the Minister can give us some information about the scope, as well as the timescale and everything else, that would be extremely good.
I will now speak very briefly to the manuscript amendment I tabled this morning. I apologise for the late delivery of this, but it was due to a changed meeting with Network Rail that many of us thought would be a good idea to have before we tabled the amendment—it turned out that it did not happen. I put it to the Minister that she is aware that this is a serious problem. Network Rail’s figure is that there is an average of seven bridge bashes a day—I repeat, seven a day—across the whole network. Some are not serious, but some could derail a train, and I do not want to go into what might happen there.
I have got as far as coming up with a long list of possible solutions, which I will not spend too much time on, and this is something that needs looking at. One of them is to allow local authorities to prosecute lorries for contravening the height regulations. They can prosecute for contravening weight regulations at the moment, so why could they not do height ones as well? I think it just needs a small change to the regulations. Traffic commissioners could be asked to remove the licences of drivers of vehicles that contravene. Obviously, the drivers and shippers could be prosecuted. The Government could require drivers’ apps—or whatever it is we put on our mobiles—to include the height of bridges; it could even include the height of the lorry, and an alarm could sound if it went wrong. You could erect those barriers we talked about last time, with the little electronic eyes.
Would it be useful to set up a quick committee and report to try to come up with some different solutions? Seven collisions a day is too many, and some of them could be fatal. I hope the Minister will agree that this could be taken forward, but I do not have any other amendments tabled to do that.
I support the amendment from the noble Baroness, Lady Randerson. I am saying that I support it before I have heard what she has got to say, but there we are—I look forward to what she has to say.

Baroness Randerson: My Lords, I thank the noble Lord, Lord Berkeley, for that vote of confidence. I wish to speak to the amendments in my name and to the group in general.
I start with Amendment 63, on exceptional hardship. If you Google “exceptional hardship”, the first listing is an advert from a firm of solicitors. I will not give  their name; they do not need free publicity from me because they also advertise on the television. They describe themselves as “exceptional hardship” and “totting up” solicitors. They define exceptional hardship as “real hardship”. They say they have covered more than 10,000 cases and have a 98% success rate. No wonder, as a recent FoI request revealed, there are 8,632 drivers driving around with more than 12 penalty points. The firm I have described is not alone; there are dozens of other firms of solicitors advertising similarly. This is an industry: this is not an exceptional situation that we are dealing with.
Amendment 63 seeks to define exceptional hardship as something significantly greater than the definition provided by that firm of solicitors and significantly greater than the hardship that would arise for a large majority of other drivers. The definition takes into account the offender’s economic circumstances, location and family circumstances. I bring this to the attention of the Government, and say that there is no point in putting down amendments for more and more stringent penalties if there is a gigantic loophole which is being exploited in front of our eyes.
Amendment 66AA, on bridge strikes, is the manuscript amendment from the noble Lord, Lord Berkeley. I am grateful to him for persisting with this issue because it is a very serious accident waiting to happen. As he has described, lorries hit bridges all the time. This causes a major impact on train services and on our economy, as well as obviously presenting a road safety issue. There are huge costs to the HGV drivers as well. Clearly, drivers do not do this deliberately, so there must be a problem. The problem is almost certainly in the signage; we have the technology nowadays, and improved signage needs to be implemented. There also needs to be a reappraisal of responsibilities between Network Rail and the highways authorities, where there is an interface.
Clearly, both my Amendment 66A and that of the noble Lord, Lord Berkeley, present examples of the type of issues that need to be included in a long overdue review of road traffic offences. My amendment is similar to that from the noble Lord, Lord Berkeley, but I have selected some other features that I think are important. It is unfortunate that all these are lumped together, but it is important that we look at this in a little detail. There is a separate group for pedicabs, which are a very small feature of modern roads and do not exist outside London, but they are one of a large number of new features of our transport system that need to be looked at and reappraised in the context of road traffic overall.
Another example of a new feature is e-scooters. It is reported that at least 11 people have been killed in the last year either on or by e-scooters. The Government’s approach has been to set up lots of pilot projects. Basically, e-scooters have been allowed to spread nationwide as a result of a lack of intervention. In a Written Answer I received from the Minister, the noble Baroness, Lady Vere, when I made inquiries about safety issues associated with e-scooters, she said:
“While trials are running, privately-owned e-scooters will remain illegal to use on the road, cycle lanes or pavements.”
That is fair enough, but no one ever does anything about the fact that thousands of them are being used, and tens of thousands more will be bought this Christmas.
The large number of pilot projects has led people to believe that e-scooters are legal everywhere. The problem is that, because they are illegal, there are so many of them around and the rules not enforced, bad practice is now the norm. Noble Lords have only to walk outside this building to see that bad practice. There are issues such as minimum age—they are often ridden by very young people—maximum speed, wearing helmets, registration, and where you ride: on the pavement or on the road. This week, Transport for London has responded to the latest danger: fires from exploding batteries. There have been several fires on TfL vehicles because people carry those scooters on trains. Transport for London has said that people can no longer do that, but it has had considerable problems and all transport operators will have to consider this issue.
We will come later to the issue of alcohol levels, so I will leave that, but another issue I want to raise is road signage. In 2016, there was a relaxation of the specification and standards for road signs. It appears to be part of a drive to reduce red tape. Last week, the noble Lord, Lord Rosser, and I met the family of a young woman who drowned when she drove at night into a ford in bad weather on a country road. From the coroner’s report, it is obvious that the poor quality of the signage was a key factor because other people had also driven into that ford by mistake—luckily for them, with not such a terrible impact. The depth gauge at that ford was so slim and poorly marked that it was invisible at night. The previous standard for depth gauges, which was abolished in 2016, required a much bigger and clearer structure.
This and others are simply taster issues for the huge range that need to be included in a review. It was promised in 2014, with a public consultation phase. We are still working on the basis of the endlessly amended Road Traffic Act 1988. Our roads have been transformed since then by the number of vehicles, vehicle technology and capability and new sorts of vehicles. The key point I am trying to make with this amendment is that the review must be comprehensive, rather than just addressing a handful of issues that are annoying Ministers at the moment. It needs to be done now, not kicked into the long grass again. It needs specifically to grapple with new technologies and forms of transport such as autonomous vehicles. It must take an overall approach to consistency of sentencing.
The problem with the approach in the Bill is that the Government have plucked out some offences for tighter sentencing, which will inevitably leave them out of kilter with other offences. The Government’s approach is for stiffer sentences with longer jail terms, but many transport campaign groups would prioritise appropriate sentencing, especially disqualification and community sentences. There are many bad drivers out there, but they often lead otherwise law-abiding lives. We have nothing to gain as a society by locking them up, which is costly to the taxpayer in the short term and in the long term, as they become much less employable on release. So, alternatives ought to be considered to simply putting people in prison.
The good thing about disqualification is that it protects the public. The key point of my amendment is that there needs to be full public consultation. In 2016, in a debate in the other place, the Government claimed that there had indeed been a review, as promised in 2014, but there was no public consultation and no published outcome. That makes a mockery of the whole process, so I am very pleased to hear from the Minister that there are plans now for a proper review, and I shall be listening carefully to what she has to tell us. I hope it will be a full and comprehensive review with proper public consultation that will take place in the very near future.

Baroness Jones of Moulsecoomb: My Lords, it is good that the Government have realised that our road traffic laws are a mess, because the cost—the human cost, the social cost—of the crimes and offences we are talking about is extremely high. When we think of the cost of the deaths and injuries to the NHS, to social services, to the emergency services, we are talking about billions of pounds and we really ought to understand that a lot of the causes are avoidable.
When I first got on to the Met Police authority, I went out a lot with the traffic teams—I have told this story before—and one sergeant said to me, “If I wanted to murder somebody, I would run them over with a car, because nobody could ever prove it was not an accident”. This brings me to the word “accident”, which we really should not use when we are talking about road collisions, road incidents and so on. It offends me and the whole road safety community deeply, because the minute you use the word “accident”, you are judging the cause of whatever happened and that is obviously unfair. You have to look into what really happened.
The most dangerous idea is people who should be disqualified from driving being able to plead exceptional hardship. We have heard a lot about “exceptional hardship”: what a misnomer. People are often allowed to keep on driving and quite honestly, they should feel lucky that they have not gone to prison because a lot of the time, it is complete nonsense. I have read about a lot of cases where the judge or the magistrate allowed someone to get away with—well, not murder, but certainly manslaughter at times. It is obviously a crime against society, not to mention the families themselves.
Any driver who is no longer allowed to drive will experience hardship—that is obvious, but the solution is not to accumulate so many points on your licence that you are a danger to society. Amendment 63 in the name of the noble Lord, Lord Berkeley, helps to close the loophole that lets dangerous drivers stay on the roads. I am not sure whether he will push to a vote. I would vote on every amendment in this group because I think they are extremely important, but, if the Government are going to do a review, it will be worth waiting for that provided that it does not take too long and covers the issues that need sorting.
Amendment 64 will help to ensure that people report road traffic collisions to the police, especially when injuries have been caused. Importantly, it also begins to fix the false assumption in the legislation that  people are not necessarily responsible. Again, when you use the word “accident”, you suggest that no one is responsible. We have to change our language; it is incredibly important. We talk all the time about road safety. Road safety is the solution to the problem we have—which is road danger. I am afraid that I completely forgot to say to your Lordships that I am the esteemed president of the Road Danger Reduction Forum, which does an incredible job.

Noble Lords: Oh!

Baroness Jones of Moulsecoomb: Was that objection to what I am saying or support? I could not work it out. We should be aiming for zero road deaths. They just should not happen. The roads and pavement should be safe spaces. We achieve that by making sure that drivers—and pedestrians as well, of course—obey the law. Legislation must comprehend just how damaging bad and careless driving are.
Finally, Amendments 65 and 66A would require a total review of road traffic offences and penalties. That really is the only sensible way forward, and the only way for society to properly address the damage caused by car culture and start the journey towards zero road deaths. I look forward very much to hearing the details of the review and hope that it happens soon.

Earl Attlee: My Lords, I most sincerely apologise to the House for not being present at the start of this debate. I strongly support the thrust of the amendment about bridge-bashing in the name of the noble Lord, Lord Berkeley. One day the holes in the cheese will line up and there will be a very serious accident, and the whole world will ask why we did not use technology to avoid such accidents. I strongly support the amendment from the noble Baroness, Lady Randerson, about “exceptional hardship”; I would not actually vote against the Government on it, but I strongly support it.

Lord Rosser: We welcome the fact that the Government are committing to a call for evidence on road safety issues next year. Like other noble Lords, I should be interested to know how long this exercise is expected to take. Also, is it purely a DfT matter, or a cross-departmental matter—and, if so, which departments are involved? On the general issue of road safety, I comment briefly on what the noble Baroness, Lady Jones of Moulsecoomb, just said. You could always reduce the number of road accidents fairly dramatically if you reduced the speed limit everywhere to 10 miles an hour, but, as a Government, you might not survive very long politically if you did that.
On “exceptional hardship”—the subject of one of the other amendments—maybe there are cases where courts are a bit too lenient. You have to draw the distinction between hardship and inconvenience, because the two are not the same. You do, however, get cases where there could be exceptional hardship and you have to think long and hard. An example would be a single parent who loses access to a car. That could have quite a profound impact on the children, particularly if they do not realistically have anyone else to help them out. You could also end up with a situation where the disqualification of a carer might involve significant impact—hardship perhaps not so much for  the carer but for the person being cared for. When you are faced with some of these situations, it is not quite as straightforward as saying “You’ve broken the law, you’ve reached 12 points and you’re off the road”: you may need to look at the consequences. I note with interest the amendment on exceptional hardship. It may well be taken into account in the review what exceptional hardship means and whether it is being applied too leniently and too frequently.
We support Amendment 58—the minimum driving disqualification periods—as we have the increases in sentences for those offences, including causing death by dangerous or careless driving. We welcome the change that the Government propose.
I think that Amendment 64, relating to hit-and-run, mentions a maximum sentence of 14 years in custody. That seems quite a dramatic increase from the current limit. I am not sure whether it is envisaged that if an accident has caused a serious or fatal injury the maximum of 14 years for not stopping is in addition to what you would get for causing the fatal injury—in which case you could get quite a high sentence. I am just commenting on the fact that it seems to be raising the maximum sentence for failing to stop quite considerably. I do not know what the Minister will say about this on behalf of the Government but again, presumably, there is no reason why that should not be considered as part of the review.
With regard to the new amendment on the hitting of bridges, which my noble friend Lord Berkeley has proposed, I have some sympathy with the view that has been expressed that surely there must be a way that technology can reduce the frequency of these events. Perhaps one is a bit too prone to make speeches saying that technology must be able to resolve these issues for us, but one would have thought that this is one area where technology should play a role, and I hope that the Minister will take this issue away and that the Government will reflect on it as part of their general look at road safety issues. I will leave it at that, without commenting on the other amendments in this group.

Lord Berkeley of Knighton: My Lords, with regard to Amendment 58, I welcome the fact that the Government are taking to task the causing of death through careless driving or being under the influence of drugs or drink. For many families that have lost loved ones to then sit in court as the perpetrator gets a ludicrous sentence for the taking of life while not having the personal responsibility to control their behaviour, especially in terms of being under the influence of alcohol or drugs—that can only be described as insult added to injury. I therefore very much welcome that amendment.
On Amendment 63, can the Minister find some common ground between the noble Lord, Lord Rosser, and noble Baroness, Lady Randerson? Both their points seemed to me to carry weight.
Not stopping after a collision can lead to the serious deterioration of an injury where the other party is unable perhaps to summon help. The situation is seriously exacerbated if someone drives away without reporting it.
Finally, I make a small point about e-scooters. This occurred to me only this evening, when driving here, and then listening to the noble Baroness opposite.  Somebody pulled out in front of me on an e-scooter, and the real problem was that any light it might have had was below the bonnet or even wheel of the vehicle behind—even if it was there in the first place. There was no lighting or reflective clothing on this person above shoe level, and none on the helmet; it is completely impossible to see somebody like that, and it gave me a terrific start. I could so easily have seriously damaged this person; it would not really have been my fault, but I would have felt profoundly disturbed by it. That is just a small point that the Government might want to look at in due course.

Baroness Jolly: My Lords, I declare my interest, as I am president of RoSPA. I shall make a few quick points. I took my driving test in 1975, and in 2005 I had a job with a brand new shiny car that went with it, which was lovely. The organisation that I worked for insisted that every member of that organisation who had a car had to spend a whole day a year having a lesson with a driving instructor. It was amazing. I had completely forgotten an awful lot, and I learned even more. It made me very much more aware of all these issues that we are talking about now—and I see several heads nodding, so perhaps there is a certain amount of empathy with that.
On the point of bridges and signage, the other issues that we are not including in this measure is that a majority of cars these days have a GPS system incorporated. Why do they not have the height of bridges programmed into the GPS so that, as they drive towards the bridge, the height comes up, and lorry drivers can see that they are not going to get under it and stop? Those are the small points that occurred to me—although this is completely not my field—as noble Lords were debating these issues.

Baroness Williams of Trafford: My Lords, I welcome the support for the government amendment. I know that there is a strong appetite to go even further among noble Lords in reforming road traffic offences. Amendments 63, 64, 65 and 66A are directed to this end. I am pleased that many noble Lords who contributed to this debate were able to discuss these issues with my noble friend Lady Vere, as the noble Lord, Lord Berkeley, said.
Amendment 63 seeks to introduce a definition for the term “exceptional hardship”, which applies in the context of a court’s decision on whether to impose a driving ban. I am most grateful to the noble Lord, Lord Rosser, for his good analysis of it, and the implications that it might have. We agree that drivers who display poor driving behaviours and reach 12 points should receive an automatic ban to protect themselves and other road users. However, sentencing decisions are properly a matter for our independent courts, based on the facts of the case before them. They have discretion over the length of a driving disqualification to ensure that it is right for the offence and offender before them and, if they are satisfied, they can accept mitigating circumstances justifying a claim of “exceptional hardship”. The noble Lord, Lord Rosser, gave some very good examples of what that might mean to some people.
We do not consider the introduction of a definition of this term to be necessary. The amendment would introduce a narrow definition that would not be able to account for all circumstances presented to the courts, and would remove their freedom to use their experience to reach decisions accordingly.
I draw noble Lords’ attention to the recent work undertaken by the independent Sentencing Council to update the guidance on totting up disqualifications. It was updated in October last year, following consultation, to provide greater assistance for the courts when considering whether there were grounds to reduce or avoid disqualification due to exceptional hardship. The updated guidance clarifies that the test should be not inconvenience or hardship but exceptional hardship, for which the court must have evidence. The law on the sentencing guidelines makes it clear that if someone is seeking to persuade the court that there are grounds for not disqualifying when 12 or more penalty points have been amassed, the only type of hardship that can be taken into account is exceptional hardship.
The guidance also sets out how such cases are to be approached and includes a number of matters that the court must have regard to when considering such applications, and some matters that the court must not take into account. On the point made by the noble Lord, Lord Berkeley, I say that sentencing guidelines are a matter for the Sentencing Council, not the Government. The relevant guidelines on disqualification were, as I said, only reviewed in 2020, so it would be right to give them some time to bed in.
Amendment 64 seeks to amend the current offence of failure to stop and report, and to introduce tougher sentencing options for collisions that involve actual or potential serious or fatal injury. I assure noble Lords that the Government are, of course, aware of the traumatic effects of incidents, however rare, related to the death of or serious injury to another person. However, it is not the intention of this offence to punish individuals where there is no evidence to connect their failure to stop with the death or serious harm. It is designed to deal specifically with the behaviour relating to the failure to stop. There are a range of offences where there is evidence that the driver caused harm. These include causing death or serious injury by dangerous or careless driving and, in these cases, the courts can treat the failure to stop as a factor that adds to the overall seriousness of the offending. The law already imposes severe penalties for vehicle offences that lead to death or serious injury but, when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome.
Amendments 65 and 66A place a requirement on the Government to conduct a full review of the road traffic offences. I understand the desire to conduct a review, but we do not think it necessary or appropriate to set this down in legislation. I am not sure that noble Lords were actually suggesting that; I think that they wanted more detail on what was going into the review. My colleagues in the Department for Transport are currently working on a call for evidence on parts of the Road Traffic Act. The Home Office and the Ministry  of Justice, together with the Department of Health and Social Care, will be working with them. Details are still being worked up as to its scope, but I am sure that they are paying close attention to the points raised in this debate. I welcome suggestions on what issues could be tackled. I am sure that my noble friend Lady Vere will want to update noble Lords on the scope and timing of the call for evidence once these are settled. Once the call for evidence is launched, we will recommend submissions from all interested parties, including noble Lords and Members in the other place.
Amendment 66AA relates to railway bridge strikes. I assure the noble Lord, Lord Berkeley, that the Government recognise the risk to the travelling public that results from drivers striking and damaging bridges. We view the current offences and penalties with which a driver can be charged in these circumstances as adequate to reflect the seriousness of the offence. These potential offences include dangerous driving, and, where appropriate, drink or drug driving and careless and inconsiderate driving.
Noble Lords will be aware that warning and regulatory signs already exist to indicate low bridges and to ensure that drivers are given information about alternative routes in time to adjust their journeys. That said, a number of noble Lords have talked about insufficient visibility of signage. I will take back that point about prominence. Local authorities are of course responsible for placing traffic signs on their roads, and the DfT provides advice to local authorities on the use of those signs in the Traffic Signs Manual.
I also accept the point about technology. My car beeps away all the time at the different things it sees that I do not. I am sure we are talking about bigger vehicles than my humble car—probably more like lorries—but I will take the point away about technology, because I think it is valid.
Disobeying a regulatory sign indicating a low bridge is already an offence that attracts an endorsable fixed penalty notice and it might lead to the disqualification of the driver. We are satisfied that the existing offences, penalties and routes to claim damages are sufficient, and are not therefore persuaded that it is necessary or appropriate to conduct an inquiry. On the other issues that have been raised, and given the prospect of the DfT-led call for evidence, I hope that the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, will be content not to press their amendments, and to engage in the process and support the Government’s Amendment 58.
Amendment 58 agreed.

  
Clause 67: Causing serious injury by careless, or inconsiderate, driving

Amendment 59

Baroness Stowell of Beeston: Moved by Baroness Stowell of Beeston
59: Clause 67, page 65, line 21, after “vehicle” insert “or pedicab”Member’s explanatory statementThis amendment would include pedicabs within scope of the offence of causing serious injury by careless, or inconsiderate, driving.

Baroness Stowell of Beeston: My Lords, in moving Amendment 59 I will also speak to the other amendments in my name as part of this group. I will try to take as little time as possible, because I know that there is still much to get through this evening.
These amendments refer to pedicabs, which are also sometimes known as rickshaws. They are loud and sometimes garish, and they hang out at all the tourist hot spots here in London. I will not repeat all that I said in Committee, but let me remind your Lordships of the problem I am seeking to address.
Pedicabs are the only form of public transport in London that is completely unregulated. The vehicles and their drivers are not subject to any kind of checks, they do not need insurance, they can charge passengers whatever they want, and they are exempt from the vast majority of traffic violations. Pedicabs can ply for hire in direct competition with our heavily regulated black cabs on any street or place in Greater London. Knowing that they can act with impunity, the vast majority of them do.
Noble Lords heard me describe in Committee the evidence of careless driving and antisocial behaviour. One of the most unacceptable aspects of pedicabs is the huge disruption they cause through the extremely loud music that many of them play. This unacceptable situation has gone on for well over 20 years. Westminster City’s residents, business owners and tradespeople who have to navigate our congested streets to do an honest day’s or night’s work have had enough and want something done.
My modest amendments to this Bill do not go anywhere near far enough in addressing the unfairness of this situation, never mind limiting the damage and reputational risk of allowing these vehicles to continue unregulated on our roads. I tabled them in part to raise awareness of the problem. These amendments are the best I can do with the legislation in front of us.
I am very grateful for the positive response I received from noble Lords in Committee. I am especially grateful to the Government for their fulsome support, not for these amendments but for the much better solution, which I referred to in Committee, that is currently in the House of Commons. A Private Member’s Bill has been brought forward by Nickie Aiken, the Member for the Cities of London and Westminster, which would give Transport for London the powers it needs to introduce a licensing and regulatory regime for pedicabs. It would not ban them outright, because there are one or two reputable businesses which provide this service and want to be properly licensed and regulated.
Before I say any more about why I have retabled my amendments and where we are now with the Private Member’s Bill, I should explain why legislation is needed. Although pedicabs can be covered by local authority licensing and regulatory regimes in the rest of England and Wales, case law has determined that, in London, these vehicles are stagecoaches rather than hackney carriages. Therefore, Transport for London needs to be given the necessary powers to introduce a proper licensing and regulatory regime.
I am pleased to say that Nickie Aiken’s Pedicabs (London) Bill started its Second Reading on Friday 19 November, which was after the Committee stage of  this Bill. Getting that far is no mean feat, bearing in mind where she was on the Order Paper that day—she was fifth, and she managed to get her debate under way. She set out her case very powerfully, and the Minister responded, declaring the Government’s full backing for the Bill, which is brilliant news and vital if that Bill is to make it on to the statute book. Sadly, time ran out that day before it could complete its Second Reading. Nickie tried again, unsuccessfully, to complete it on 3 December. It is now scheduled again, for Friday 21 January.
Nickie is not giving up, and neither am I. There is still a real chance that she will get over that hurdle next month. If she does, and with the Government’s declared support, there is every reason to be positive that we will get this on to the statute book this Session—but time in this Session is starting to run out.
I am very grateful to my noble friends Lady Vere, Lady Williams and Lord Sharpe, their officials and the Bill team for the time they have given to meeting me to discuss this matter over the last few weeks. Since Committee, I have explored a range of alternative amendments to this Bill, as stopgaps in case that Private Member’s Bill fails, but these are either deemed out of scope or are detrimental in some other way as to render them unacceptable.
I will not divide the House on these amendments tonight, as I know the Government do not support them; no doubt the Minister will explain why. I remind noble Lords that these amendments would bring pedicabs into scope of careless driving offences and prohibit loudspeakers, which they use to amplify music.
Even though Nickie and I have not given up on her Private Member’s Bill succeeding, I am worried not to lose the faith of the people of Westminster, the black cab drivers and businesspeople who pay their taxes, live by the law of the land and work hard to maintain the reputation of our capital city. Countless times over the years they have had their hopes raised and dashed that this will be sorted out. Indeed, this situation must feel like a real injustice when they face so much regulatory burden and so many hurdles, while the pedicab riders who flout the law without a care in the world do not. This sense of unfairness only gets worse, as yet more road restrictions in the capital are implemented, especially for our black cab drivers.
I am immensely grateful for the Government’s ongoing support of the Private Member’s Bill and all the effort everyone is making to get it over the line. We are not giving up on that; there is still everything to play for. Before I withdraw this amendment at the end of the debate, I ask my noble friend the Minister: what assurance can he give me that the Government will not allow this injustice to drift on if the worst happens and Nickie’s Bill does not pass in this Session? I beg to move.

Lord Berkeley: My Lords, I am grateful to the noble Baroness for tabling these amendments, which are very interesting. I will speak to the amendments as opposed to the Private Member’s Bill, but I will have quite a few comments on that too.
I have nothing at all against pedicabs, though I do not like the noise and they get in the way sometimes—but then so do bicycles, although they do not make noises.  My worry is, first of all, with the definition of a pedicab. As I read it, it would also include a tandem bicycle. Who would know whether my passenger on the back was paying me? I think one has to go into a bit more detail than that.
There are more and more pedicabs going around which are actually pulling freight. I am sure the noble Baroness would not want to stop them being an environmentally friendly form of freight. If the vehicle had two seats, and if the driver had a friend on the back and somebody said, “You’re paying for it”, he would come under this regulation. That is before we get into the question of electric assistance, which I think some pedicabs have. Frankly, some of them go very fast and I do not think it is particularly safe, but we have to make sure that the definition is absolutely right.
The noble Baroness spoke a lot about protecting the taxi industry and black cabs—we all love black cabs—but they are in competition with Uber and quite a few others now, and I do not think that one needs to, or should, restrict competition just because one feels that these pedicabs get in the way. Maybe the answer is for them to have parking places as black cabs do. My big worry is whether they are insured, because that is obviously very important if you are carrying passengers. Whether the freight ones should be insured is debatable, because we would then be asking whether bicycles and cyclists should be insured, and that is another can of worms.
The biggest problem is that, in London, as the noble Baroness has said, the legislation goes back to 1869 and the Metropolitan Public Carriage Act, which seems to allow them to go around as they do. But pedicabs are used in many other towns and cities outside London and they have a problem because they are not allowed unless they are registered as a taxi, I believe. The legislation needs to cover the whole country in a similar way so that people can use it. We need to make sure that the vehicles have insurance, and do a few other things, but I do not see the need for having a difference in London just because of a piece of legislation that is 150 years old.
I have quite a few comments on the Private Member’s Bill if it ever comes here. I am happy to talk to the noble Baroness in the meantime, but I thought those comments on her amendment might be helpful. I look forward to other noble Lords’ comments as well.

Lord Ponsonby of Shulbrede: My Lords, the noble Baroness, Lady Stowell of Beeston, moved her amendment extremely clearly and explained the background in a way that I, as a sitting magistrate in the City of Westminster, understand very well. I have indeed dealt with some pedicabs in my time. The noble Baroness said that she will not divide the House, and I understand that.
I will pick up a couple of points made by my noble friend Lord Berkeley. This is a fast-evolving situation with freight pedicabs and electric freight pedicabs. Even in my current sitting pattern over the last few months, I have seen the way the police charge e-scooters changing really quite radically. To give an example,  probably less than a year ago, I only ever saw e-scooters charged with traffic offences if there was another offence associated with it, such as robbery or an accident. But now, literally in the last month or so, I see e-scooters charged as a stand-alone traffic incident, if I can put it like that. There is clearly an evolution in the way the police are addressing these issues. Nevertheless, the noble Baroness has tabled an interesting group of amendments, and I look forward to exploring it in more depth if the Private Member’s Bill ever gets here.

Baroness Randerson: My Lords, I will comment briefly on the points raised by the noble Lord, Lord Ponsonby. This is an evolving situation. The key point is that the noble Baroness has raised the issue of a particular type of pedicab, but there is a crossover with the cargo bikes that are increasingly being used and are increasingly welcome for the delivery of goods, parcels and so on. They are hugely welcome on our streets. It is really important that any legislation deals with those two issues and separates them out, although the vehicles are very similar. To my mind, that underlines the point I was making earlier about my amendment and that of the noble Lord, Lord Berkeley: we need a complete and comprehensive review of the emerging and changing picture of traffic on our streets.

Lord Sharpe of Epsom: My Lords, I thank again my noble friend Lady Stowell for her work on this issue. I know she feels passionately about the regulation of pedicabs, particularly in the capital. I also thank all noble Lord who took part in this brief debate.
In England outside of London, as my noble friend is aware, pedicabs can be regulated as hackney carriages—that is, as a taxi—so the local licensing authority can require the driver and the vehicle to be licensed. In London, which has separate taxi and private hire vehicle legislation, this is not the case, as my noble friend pointed out. This means that there are not many powers for Transport for London to regulate pedicabs.
The Government agree that there needs to be greater regulation of pedicabs in London. That is why they are fulsomely supporting the Private Member’s Bill being brought forward by Nickie Aiken MP in the other place. I know my noble friend has also been a strong supporter of that Private Member’s Bill. The Government also strongly support that Bill as it would enable Transport for London to put in place a cohesive regulatory framework for the licensing of pedicabs in London. I share my noble friend’s disappointment that it has yet to pass its Second Reading, but, as she noted, that has been rescheduled for 21 January.
Should that Private Member’s Bill be unsuccessful, the Government remain committed to bringing forward the necessary legislation when parliamentary time allows. I assure noble Lords that we will take this commitment seriously. We explored whether the provisions of the Private Member’s Bill could be incorporated into this Bill, but regrettably, as they focus on regulation and licensing, they fall outside its scope.
Once again, I praise my noble friend’s commitment to resolving this issue, but although I note the spirit with which her amendments have been proposed, it is the Government’s view that amendments are not the  right method for making these changes. The introduction of a licensing regime for pedicabs, as the Private Member’s Bill would introduce, is the appropriate way forward for this matter. The Government do not believe that a partial way forward would be an appropriate or effective way to deal with this.
On the subjects raised by the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, to go back to the previous group, my noble friend the Minister outlined the call for evidence. I suggest that that would be the appropriate place to raise those points, because they are very good ones. This is probably not the right time to get involved in a debate about what is and is not a tandem, however.
I hope my noble friend is somewhat reassured that the Government share her view and commitment on this. Although I cannot give her the categorical assurance she seeks, I hope she feels able to withdraw her amendment.

Baroness Stowell of Beeston: My Lords, I am very grateful to my noble friend the Minister for his and the Government’s ongoing support for resolving this matter, and particularly for the Private Member’s Bill, which remains live in the other place.
I note that my noble friend said that amending this legislation is not the right way to address this issue. That point is very much in response to most of the points raised by the noble Lord, Lord Berkeley. What I acknowledged in bringing forward these amendments is that there is a well-established regulatory body here in London standing ready to introduce a licensing and regulatory regime that would properly cover pedicabs in a way that would target them and not catch the other vehicles that would not be intended to be included in any kind of regime. The concerns he has would be addressed by the way we want to make sure this matter is dealt with.
The point is that it is possible in the rest of England and Wales for local authorities to license and regulate pedicabs as and when they arrive in cities or different towns, as my noble friend the Minister has already said. It is only in London where we have this legal gap. There is nothing at the moment—apart from any kind of specific laws that get broken—which would cover any unacceptable activity. But it is so unfair because we currently have operators on the street who can quite legally ply for trade and compete with black cabs on an uneven playing field, and in doing so, they rip off tourists and give our capital city a bad name. None the less, I am sure there are a lot of pedicab operators who would provide a fantastic service that would operate alongside black cabs, Uber and everything else if we were able to bring in a professional regime and, at the same time, prevent them operating in a way which would be unacceptable to residents and businesspeople in our capital city.
This issue needs to be addressed, so let us all keep rooting for this Private Member’s Bill. I would be happy to speak to the noble Lord about any specific points he wants to raise about that Bill, in the hope that it is going to come here.
Finally, if I can use the collective noun of “officialdom”, there comes a point when we have to recognise that it is not good enough if the only thing we ever do is  legislate in a way which increases the burdens on people, but we never find the time to introduce laws that tackle those who have no intention of ever operating within the law. That is what we need to do. However, on that note, I beg leave to withdraw my amendment.
Amendment 59 withdrawn.
Amendment 60 not moved.

Amendment 60A

Lord Hope of Craighead: Moved by Lord Hope of Craighead
60A: Clause 67, leave out Clause 67

Lord Hope of Craighead: My Lords, I am moving this amendment to enable the House to continue the discussion which took place in Committee with regard to what was then Clause 66: the new offence of causing serious injury by careless or inconsiderate driving. I should stress that we are dealing here with careless driving pure and simple, with no aggravating factors or other offence being committed—an act of carelessness or a moment of inattention which causes a serious injury.
My objection to the clause relates to the fact that among the penalties that a conviction for this offence will attract is a sentence of imprisonment: two years on indictment and one year if prosecuted summarily. There are also provisions for automatic—or, I should say, obligatory—disqualification and endorsement. I make no complaint about that, nor do I complain about the two-year sentence on indictment. However, I am concerned about the sentence of imprisonment in cases which do not deserve to go to jury trial and are taken summarily before magistrates, or before sheriffs in Scotland.
I recognise that as the law stands, causing death by careless or inconsiderate driving does attract a sentence of imprisonment. On the other hand, causing a very serious life-changing injury, where perhaps the injured party has survived only by the skill of the doctors, does not. I can well understand why the Government see this as a gap which needs to be filled. But the situations to which the wording of this clause will apply extend well beyond those where one can reasonably say that there is a gap in the present law that needs to be filled. The words “careless” and “serious injury” can embrace many situations where to send the careless driver to prison would be wholly disproportionate. That is my concern.
I am grateful to Roger Geffen, the policy director of Cycling UK, for his comments in an email that I received this morning, saying that he shared my concern. Cycling UK represents, I suppose, the other road users who are the most vulnerable to this kind of offence. I have not had quite the same experience as my noble friend Lord Berkeley of Knighton, but I have encountered cyclists in the early hours of the morning when, in Scotland, it is really dark, and they were not wearing much in the way of illumination. If I had been a bit careless, I might have knocked one of them off their bicycle and broken their wrist, for example. There you are: an act of carelessness and an injury that would be classified as serious. Am I then to be facing a prison  sentence? That is my concern, and he recognises that point. As he put it, the law should not threaten prison sentences for driving that is deemed to be merely careless. The emphasis that he would like to see is on disqualification as a better way of getting people off the road than sending them to prison. It is a much more acceptable way of dealing with this offence, unless it reaches the very peak of the situations where the injuries are indeed very serious.
I am very grateful to the noble Baroness, Lady Randerson, for adding her name to this amendment. I am also grateful to the Minister for meeting with us last week to discuss our concerns and the way they might be addressed. I have given some thought to the possibility of changing the wording of the clause, but I have come to view that the words “careless” and “serious injury” are too embedded in the statutory lexicon for that. Adding the word “very” to “careless” or “very” to “serious injury” does not really improve the situation: indeed, it could cause some confusion and more difficulties than are really worth attracting for those who have to make judgments on these things. I decided, therefore, that trying to tinker with the wording is not the solution, which is why I turn to the Minister.
It seems to me that a pragmatic approach to this problem is to accept the wording of the clause, but for the Government to indicate as strongly as they can that it is not their intention that prison sentences should be the norm, even when the injury tends towards the upper end of the scale. Ultimately, the way of dealing with the various gradations of injury and carelessness would be a matter for the Sentencing Council to set out, as it has already done for this kind of offence in various grades. However, all of that will take time, which is why an indication from the Minister would be very important as we encounter this offence coming before magistrates and sheriffs soon after the Bill takes effect. I hope the Minister will be able to assure your Lordships that he has taken on board my concerns about the possibility of prison sentences for this offence by placing that possibility into its proper context. I beg to move.

Lord Marks of Henley-on-Thames: My Lords, I support the opposition of the noble and learned Lord, Lord Hope, and my noble friend Lady Randerson to this clause. The clause as it stands is simply wrong in principle and I agree with the noble and learned Lord that this is not a case where you can simply tinker with the language. The problem is that the clause threatens to penalise the outcome of the offence—that is, serious injury—with imprisonment, yet the mental element of the offence of careless driving is no more than negligence. Careless driving involves no more than a driver falling below the standard of care of a prudent driver. All negligence is careless; a simple mistake or inadvertence will suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have taken before. It offends against the principle that the seriousness of the offence should depend not just upon the act done, but on the state of mind of the offender. That is what distinguishes careless driving from dangerous driving, because dangerous driving involves a very serious departure from the normal standard of a careful and sensible driver.
I make one further point. In the absence of mechanical failure or an unexpected event, almost every accident is the result of negligence on the part of at least one of the drivers involved. Sadly, a large number of accidents involve serious injury. A broken limb is a serious injury for this purpose, as the noble and learned Lord, Lord Hope, pointed out.
The vast majority of accidents arising from negligence —whether they cause serious injury or not—do not currently lead to prosecution. I should be grateful to hear whether the Minister regards the establishment of this new offence as likely to lead to more prosecutions. This clause would leave it to the police and prosecuting authorities to pick out the few accidents which they decided should lead to prosecution. This would expose drivers to the risk of imprisonment for a simple mistake. Leaving this decision to the police and prosecuting authorities to implement in a very few selected cases would be arbitrary and unfair. It would introduce an unwelcome element of lottery into our justice system.
It may well be that the noble and learned Lord does not press this to a vote. I hope that, for the reasons I have outlined, we will get a very clear statement from the Minister as to how prosecuting decisions will be taken in these cases and as to what he regards as the likely approach to sentencing. I suggest that imprisonment for inadvertence is a retrograde step.

Baroness Randerson: My Lords, I was pleased to have the opportunity to join the noble and learned Lord, Lord Hope, on Amendment 60A—whether Clause 67 should stand part of the Bill. I thank the Minister for his time and willingness to try to assist us. I shall listen carefully to what he has to say.
The crux of this is when careless becomes dangerous. My experience in 20 years as a magistrate is that, basically, people are charged with both in the hope that the prosecution manages to make one or the other stick, as they say. I share the concern expressed by my noble friend of exactly what careless means. What should it mean? It should mean exactly what comes into our minds when we use the word. It should not be regarded as just a slightly milder form of dangerous. The thought processes behind it should be significantly different. Careless usually implies without specific intent—often a momentary lack of attention. Most of us sitting here will have suffered from this at some point in our driving careers. Most of us will have been lucky enough not to have caused an accident during that momentary lack of attention. Or, if we did cause an accident, hopefully it did not cause injury. Even the noble and learned Lord, Lord Hope, has struggled with the definition and hence opted to try to remove the clause.
I look forward to hearing the Minister’s response, because he has assured us that he will be able to elucidate sufficiently for us to feel that there will be a clear distinction. We do not want to face a situation in which, for example, a harassed mother with a child or two in the back who backs out of a parking space and inadvertently hits a pedestrian might go to prison, when she was backing out carefully in terms of her own concentration at that moment, was not going fast and was looking in her mirrors, but there were too many things happening at the same time for her to be able to concentrate fully and she made a terrible mistake.
I think we have all been guilty of that sort of momentary inattention or error of judgment and people should not find themselves being sent to prison for something such as that. It is therefore very important that the Minister is able to reassure us that that is not the kind of thing the Government have in mind.

Lord Ponsonby of Shulbrede: My Lords, it appears that there has been some constructive discussion behind the scenes in preparation for this debate—I can see the Minister nodding his head.
I thank the noble and learned Lord, Lord Hope of Craighead, for his very clear exposition of the issues he is raising with this. Essentially, his points were that the law should not threaten prison if somebody is careless, when a disqualification is more appropriate, and that adding the word “very” before the words “careless” or “serious injury” is not an appropriate way forward and there should be another approach. I hope we may hear from the Minister on that in due course.
I support the opposition to the clause itself expressed by the noble and learned Lord, Lord Hope, and also listened with great interest to the question from the noble Lord, Lord Marks, on whether the Minister thinks there may be any possible increase in prosecutions under this new definition of carelessness. I hope that is not what the Minister intends.
I also share the point made by the noble Baroness, Lady Randerson, that in magistrates’ courts you often see dangerousness and carelessness charged in the alternate and it is up to the court to decide which is the more appropriate charge. Having said all that, I look forward to the Minister’s response.

Lord Wolfson of Tredegar: My Lords, the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago to constructive discussions. There have indeed been discussions between me, the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, and, so far as I was concerned, they were constructive. I am grateful to both of them for the time they gave to those conversations. I will set out the Government’s position, and I hope it will reassure them on the various points they raised.
Clause 67 introduces a new offence of causing serious injury by careless driving. By creating this new offence, the clause fills an admittedly small but, we think, significant gap in the current legislation. We considered the creation of this new offence and the maximum penalty it attracts very carefully during the review of driving offences that cause death or serious injury. We remain of the view that there is a clear gap in the law. That view was supported by the vast majority of people who responded to the consultation and by the other place.
Although I understand why the noble Lord, Lord Marks of Henley-on-Thames, says that this clause is wrong in principle, I respectfully disagree. I will explain why we think there is a gap in the law by looking first at the position with regard to dangerous rather than careless driving.
For dangerous driving, there are three main offences. The most serious—causing death by dangerous driving—has a maximum penalty of 14 years, to be increased to  life by Clause 66. Secondly, there is causing serious injury by dangerous driving, which has a maximum penalty of five years. Thirdly and finally, there is the basic offence of dangerous driving—for example, where there is no injury. That has a maximum penalty of two years.
There is a clear and we think significant gap between the two, not three, offences that exist for careless driving. On one hand, there is causing death by careless driving, which has a five-year maximum. On the other, there is the basic careless driving offence, which has a maximum penalty of a fine, not imprisonment. We have seen some cases where there was evidence of carelessness leading to very serious and life-changing injuries, and where the only charge that can be brought is for the basic careless driving offence and the only penalty available therefore is a fine. We do not think it is acceptable that, when there is significant injury and some degree of culpability by the driver—carelessness is still a level of culpability—that can result only in a financial penalty. I stress that the level of injury required to commit the offence is serious injury, not just any injury. Serious injury is the equivalent of causing grievous bodily harm.
I shall turn to sentencing, raised by the noble and learned Lord, Lord Hope, in particular, in a moment. First, I should say, in response to the question of the noble Lord, Lord Marks of Henley-on-Thames, on prosecution that, with respect, I do not accept that it is a lottery, which I think was the word used. Prosecutions are independent of government and, for this offence, prosecutions will happen in the way that they happen for all other offences. The CPS will consider the law once it is passed. A code of practice will be issued for Crown prosecutors, and that will follow normal principles as to whether it is in the public interest to prosecute and whether there is a reasonable prospect of conviction. As to whether there will be an increase or a decrease in prosecutions overall, it will lie where it falls, so to speak. I do not go into this offence intending to increase or decrease prosecutions. Of course, the fact that there is an offence in the middle, between the two current careless driving offences, may mean that some things will be prosecuted here when they would not have been prosecuted previously elsewhere.
I turn to the point raised by the noble and learned Lord, Lord Hope. With respect, I accept the point he makes that, while the harm caused may be high, this remains a relatively low-culpability offence. That is why we set the maximum at two years’ imprisonment, to fit proportionately within the existing sentencing framework. Let me try to illustrate what I mean. The new offence of causing serious injury by careless driving must be more serious than the existing offence of driving when disqualified, which has a six-month maximum penalty, and where there is no requirement for either bad driving or indeed any injury. It must, however, be lower in seriousness than causing serious injury by dangerous driving, which has a five-year maximum, as I said earlier. That is why we think a two-year maximum—I underline “maximum”—is the appropriate penalty. I underline that two years is the maximum because the maximum has to take account of the worst imaginable case.
We do not expect that the maximum sentence will be imposed except in extremely serious cases, nor do we assume that a custodial sentence of even the shortest length will be routinely imposed for this offence. Sentencing is clearly a matter for the courts, but they are required by statute to consider, before imposing a custodial term, whether the offence is so serious that custody is the only suitable sentence for the offence, having first considered the alternatives to custody; then, in considering the seriousness, they have to consider both culpability and harm. Courts are, of course, also required to follow any relevant sentencing guidance issued by the independent Sentencing Council. The council is currently developing revised guidelines for motoring offences, including for this new offence, and it plans to consult on them in due course.
Normally, the Sentencing Council produces a guideline that categorises offences according to culpability and the harm caused. It will then set out starting points and ranges for the sentences in each category. It will also highlight aggravating and mitigating factors particular to the offence or the offender which the court may have particular regard to. In that way, we believe there will be full consideration of both the injury caused and the level of the offender’s carelessness in setting the sentences. Because there will be discretion for the courts to carefully consider the sentence following the law and the sentencing guidelines; because we are filling a gap in the law which can lead to injustice, albeit in a small number of cases; and because this proposal attracted overwhelming support both among the public and in the other place, I suggest to your Lordships’ House that this is a carefully considered and proportionate offence.
I hope I have answered the particular point put to me by the noble Lord, Lord Marks, but before I sit down I again record, sincerely, my thanks to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope, for the time they spent with me discussing the issues to which Clause 67 gives rise. I therefore suggest that it should stand part of the Bill.

Baroness Randerson: I thank the Minister for his explanation, which is very interesting and largely reassuring. The one aspect of it that worries me is the comparison with the maximum six-month sentence for driving while disqualified, because that goes back to the points my noble friend Lord Marks was making: if I go out and drive while disqualified, I am doing so with a settled determination to do something I know is wrong. I have already been punished for doing something pretty bad, and I am building on that by ignoring the disqualification. Comparing that with the case of someone who goes out with no intention to be careless—because it is at the heart of carelessness that it comes on you unexpectedly—but does something wrong by mistake and someone is injured as a result, it seems to me that the mental state is far worse in the case of the person who goes out to drive while disqualified, however perfectly they manage to drive.

Lord Wolfson of Tredegar: My Lords, of course I understand and to a certain extent accept that point; we have previously helpfully discussed it. What we try to do with the two-year maximum is find the  appropriate level. One has to fit it between that six-month point and the five-year point for the reasons I have explained. Even if the noble Baroness does not accept the comparison with six years, it still obviously has to be below five years. The question is where we should put it. The central point is that maximum penalties are there for the worst imaginable case. The two years, therefore, is really for the worst imaginable case. I have sought to set out, in not too great length but clearly, why it is two years and, more importantly, what a maximum sentence means in this context and what the very limited circumstances are in which we would expect a maximum sentence to be imposed—not because the Government are telling the courts what to do but because, given the guidelines under which the courts already operate, it would be a very rare case to have a term of imprisonment or, certainly, a maximum term of two years. That is why I set it out earlier in the terms I did.

Lord Hope of Craighead: My Lords, I am grateful to all noble Lords who have spoken in this short debate, and in particular to the Minister for his careful attention to the points that I have raised and the carefully worded assurances that he has given us in the past few minutes.
The worst imaginable case is the reason why I accept that there is a gap that needs to be looked at and filled, and this offence obviously addresses that gap. But one is faced with the mental element that the noble Baroness, Lady Randerson, and the noble Lord, Lord Marks of Henley-on-Thames, have drawn attention to. It is that which makes it very difficult to accept that, even for the middle layer, there should be a sentence of imprisonment at all, in comparison with the many offences where there is a distinct mental element and a deliberate intention to flout the law—to disregard it, shrug your shoulders and go ahead anyway. It is not that kind of offence, which is why it is so important to signal, as the Minister has done, that it is only for the most extreme cases that a sentence of imprisonment for this kind of offence would really be appropriate.
Obviously, we must listen and wait for the Sentencing Council to set out the scales, and no doubt it will do so with great care. But, for the time being, what the Minister has said offers some reassurance, and I am extremely grateful for that. For those reasons, I beg leave to withdraw the amendment.
Amendment 60A withdrawn.

Amendment 61

Lord Brooke of Alverthorpe: Moved by Lord Brooke of Alverthorpe
61: After Clause 77, insert the following new Clause—“Alcohol limits(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood,”.(4) For paragraph (c) substitute—“(c) 67 milligrammes of alcohol in 100 millilitres of urine,”.”

Lord Brooke of Alverthorpe: My Lords, in moving Amendment 61, I shall speak also to Amendment 62. It is convenient to take the two together.
Since Committee, the noble Lord, Lord Sharpe, has kindly written, and I am grateful to him for sending a letter in which he set out statistics relating to the deaths and serious injuries arising from drinking and driving and for those drinking excessive alcohol. The numbers that he quoted are broadly similar to those which I ran in Committee. Reference is also made to the later figures which have come out for 2020, on which I shall not comment because they relate, in part, to four months of the year when we were in lockdown, when traffic levels fell and a whole range of other factors were quite different from normal life. I suppose the one saving grace of that period was that pedal cyclist casualty rates fell by 34%; one can only hope that that might continue in future.
What we have had is a decade of broadly the same number of deaths of people who have been killed by drunk drivers and probably a marginally increasing number of people being seriously injured in recent years. Is this to continue? Is the law right? The Government maintain that they want more evidence before they make changes. In his opening remarks in Committee, the Minister said:
“the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue”.—[Official Report, 8/11/2021; col. 1535.]
I was surprised, but pleasantly pleased, to hear him say that.
I assume that the provisions are based on science and evidence. If so, could I ask the Government again, as I did way back in 2016, when I moved a Private Member’s Bill, whether they are prepared to present that science and put it in the public domain? As the Government know, clearly, that has relevance to the law of the land.
However, why do the Government continue to permit and give guidance that allows motorists and motorcyclists to drive with quite high levels of alcohol in their blood, especially when other countries now do not? In recent years, many have reduced their levels, but not the UK and Malta. If the Government really believe what I have just quoted from the noble Lord, why do they ignore the science that the more alcohol you drink, the more you risk a collision and possibly maiming or killing people on the scale that continues, as a decade’s data now shows?
Is it not strange that the Government insist that they need more evidence from advocates such as me before they will formally require and advise people to drink less when driving? Surely, in the light of the known statistics on deaths and serious injuries, it is now up to the Government, after a decade, to justify why they continue with the law as it is, with people having advice that permits them to drive with quite high levels of alcohol in their blood. This is contrary to the science, and I argue that the Government’s position should change.
In 2014, Scotland changed from 80 milligrams down to 50 milligrams. Initially, it saw quite a change in public attitude, because there was a good deal of  public relations relating to the change. Regrettably, the enforcement from the police was not prevalent or changed and, in the light of that inadequacy, the public at large slipped back—so now we have evidence quoted against us that it is only enforcement that really works and that changing the law and giving advice on what you should and should not drink will not make any difference. As I have argued, in my opinion, it would. People are entitled to know the amount they should or should not drink, and it should be lower than it is at present. Those who have known people killed or seriously injured look to the Government to clarify their position in this respect.
I accept that there is an argument about enforcement, as I did previously. It is inadequate at the moment. I speak now to Amendment 62. I have endeavoured to help the Government with a possible solution in this area, because we cannot continue with the number of deaths and the number of people being so injured. I have tabled Amendment 62, which seeks the introduction of police random breath tests. It does not require additional resources, other than the money spent on a public campaign advising people that, if they drink and drive, they run the risk of being stopped and breath-tested without necessarily committing any other motoring offence, which at present is generally not the position.
This is a deterrent. I think the Government have now seen that there are merits and benefits in using deterrents. I remind the House that, only last week, in the 10-year drugs plan, the Government announced that if people were caught purchasing and using illegal drugs they would face deterrents—the deterrent of having their driving licence or passport taken away from them. I believe this is a move in the right direction in another area, and I hope the Government will be prepared to seriously consider looking for deterrents in this area, given that the existing law has not reduced the number of deaths and the number of people being seriously injured.
I am grateful too for the invitation from the noble Baroness, Lady Vere, to a number of us to talk to us about our amendments and how the Government might try to find ways of accommodating us. She reported that the Government intend to call for evidence and to establish a review of road traffic offences. I, like other noble Lords, welcome that but, having been around this House for quite some time, I am very conscious that we have embarked on similar reviews previously. We were promised one in 2014 and we still have not had it. Since then, in the area in which I am interested, 1,500 people have been killed and some thousands have suffered serious injuries.
I believe that the Government have been seeking to persuade me again to withdraw on the basis that this topic will come under the review. I do not believe that I should wait a great deal longer with regard to drink and driving offences, and I hope the House is not prepared to do so. We have been around this so many times previously—there is so much science around and so much evidence.
I hope that the Government will do the right thing—they know in their heart what the right thing is. I hope too that noble Lords will stand by their decision of  2015 on the Private Member’s Bill that I brought before the House, and which was adopted. I hope they will stand by the decision taken then, notwithstanding what their Whips might have said to them today. This House has an independence not seen to the same extent in the other place. I hope tonight that, having listened to me, noble Lords will show their independence and back the amendments that I bring before them.

Baroness Finlay of Llandaff: My Lords, I have added my name to Amendment 61. During the previous debate on alcohol limits, it was suggested that the evidence from Scotland did not support lowering the blood alcohol content limit from 80 to 50 mg per 100 mls.
Scotland changed its law in December 2014, as has been said by the noble Lord, Lord Brooke of Alverthorpe. I am most grateful to the Minister, the noble Baroness, Lady Vere, for asking her officials to provide me with the raw data on alcohol levels in fatalities year by year. I am particularly grateful to those officials who patiently went through the number of fatalities with me. I have spent some time today looking at this and doing graphs; I am sure that the House will be glad that I cannot project Powerpoint here. Looking at the data, two years before and about two years after Scotland changed the law, I am not convinced that there is not a change. In other words, I think Scotland stayed pretty well static, but the number of deaths in England and Wales went up.
I have not had a statistician go through the data with me, so I put that caveat around it—and O-level maths was a long time ago. However, we know Scotland has an alcohol problem and a problem with a culture of drinking. When I was a GP in a poor area of Glasgow, I certainly found that I almost had to redefine alcoholism, because alcohol was completely endemic; it really was a problem, and I think it still is. The importance of the data that I have been looking at, and for which I am grateful, is that the law change brought a message of not drinking and driving, and the messaging is important.
Last week, a young woman I knew, a superb musician who taught and encouraged many other young people, was killed by being run over by an intoxicated lorry driver. The tragedy is compounded by the fact that people apparently knew that this driver was repeatedly intoxicated on drugs and alcohol. This has been pretty devastating for me and my family in the week before we came to this amendment, but I want to share it with the House, because I want people to understand that this is real. Young, completely innocent, people are being killed by someone with this powerful weapon in their hand: the keys, the steering wheel, the accelerator, et cetera.
In 2019 alone there were 130 fatalities where alcohol was detected on the driver of the car, motorcycle or other vehicle, some at very high levels. The purpose of a threshold is not to say that it is safe to drive below that threshold, because it is not: the threshold is the threshold for prosecution by the police, because that is the level at which the impaired reaction time and co-ordination become indefensible. That impairment, however, is not all or nothing: there is a gradient of deterioration. In some people, that deterioration happens  at very low levels of blood alcohol—lower than the limit set in law. I would like to see the threshold set at 10 milligrams per hundred millilitres, but I know that that would not be acceptable to others.
Laws send powerful messages, so I ask the Government: who benefits from leaving intoxicated drivers to kill people? Who loses out if they cannot drink alcohol and hold the car keys? Are the Government in the grip of the alcohol industry? Is that why we have to accept fatalities and life-changing injuries, at enormous cost to health and social care, to education services, which have to cope with the bereaved children, and to our society overall? The current law is indefensible, and it is about time we changed it.

Baroness Bennett of Manor Castle: My Lords, it is a great pleasure and a real responsibility to follow the noble Baroness, Lady Finlay of Llandaff, and her hugely powerful speech. I also thank the noble Lord, Lord Brooke of Alverthorpe, for introducing Amendment 61 in particular. I speak on behalf of my noble friend Lady Jones of Moulsecoomb. She is much more of a lark and I more of an owl—so the timing works for this amendment.
I start by picking up on the account that the noble Baroness, Lady Finlay, gave the House of one death, and the fact that the Institute of Alcohol Studies estimated a few years ago that if the level was reduced to 50 micrograms, at least 25 deaths would be saved every year. It sounds like a number, and perhaps not an enormous number compared to the total number of deaths on the road. Think, however, about 25 individuals, like the single victim that the noble Baroness, Lady Finlay, just spoke about—their families, their work colleagues and the people they have helped—and ask yourself why we have the highest level of legal blood alcohol in Europe.
It is also worth picking up a point that the noble Baroness hinted at: the level we have now encourages people to think how much they can drink and still drive. I entered a search, “knowledge drink-drive units UK”, on a popular search engine—one of those that throws up a series of suggested questions based on what lots of other people have asked. The most popular question was “How many drinks can I have and drive in the UK?”, followed by “Can a man drink two pints and drive?”. That is where our current level is set—it invites people to push up to the limit.
Going back to my origins in Australia, in particular my time as a young journalist in rural Australia, I saw a great deal of drink-driving and its effects—the casualties and the families left behind. It is important, however, to stress the point made by the noble Baroness, Lady Finlay, which is that any level of drinking and driving is drink-driving. Figures from the road safety charity Brake show that in the 50 to 80 microgram range, you are six times more likely to be in a fatal crash than at zero micrograms, and between 20 and 50 micrograms you are three times more likely to be in a fatal crash. It is clear that we should be at zero or at such a low level that it is effectively the same as no drinks. Let us at least improve it.
Prior to this amendment, the Government said in 2018 that they were interested in looking at this issue and were thinking very seriously about it. That was  three years ago. They might say that we have had a pandemic et cetera since then, but surely this is the time to take action to get us at least to a better place and to save lives like the one the noble Baroness, Lady Finlay, was just speaking about.

Lord Berkeley: I will speak briefly to support my noble friend’s amendments and welcome the support that other noble Lords have given to him. I watched from the sidelines an issue that reminded me that the drink-drive legislation comes from the Health and Safety at Work etc. Act. It does not just apply if you are driving on a public road; it applies if you are on a private road, driving along a beach in a 4x4 or driving round a large field or estate that you own. The fact remains that if you are under the influence there and you injure somebody, the penalties are no different from those you would incur if you were on the road.
I reflect that it is a responsibility to drive a vehicle. It is no different to driving a train, piloting an aircraft or operating machinery in a port or a factory. Most companies nowadays are adamant that employees should not have alcohol in their bloodstream. We all accept that and think it is a very good idea—we do not want to be on a plane if the pilot is half drunk. Why, then, do we accept that people can go around with too high a blood-alcohol level when driving a car, which is just as lethal as a plane, a train or a piece of machinery?
I support these amendments. I would go further, as I think the noble Baroness would. This is not about fun. It is about driving safely what can be lethal machinery.

Baroness Randerson: I was very pleased to add my name to Amendment 61. Alcohol has been a factor in road safety for as long as there have been roads, but we know a lot more about it now and there is worldwide evidence of what works. That evidence has been taken up across Europe and, indeed, across the world, by a large number of countries.
In Committee, I was surprised to hear doubt being cast on this issue on the basis of an apparently disappointing impact in Scotland of lowering the limit. However, this is a very misguided approach, casting doubt on the scientific evidence rather than looking to see, if it has not worked in Scotland in the way that was hoped, why. Indeed, I agree with the noble Baroness, Lady Finlay, that there are sound grounds for saying that it has had an impact in Scotland.
There are two factors involved in all this: the level at which it is illegal to drive and the enforcement of that level. There is scientific evidence for the former and a debate to be had on the best ways of enforcement, which is why I did not sign the other amendment, tabled by the noble Lord, Lord Brooke. That does not mean that I do not agree with it, but I think that there is a serious debate to be had about how you enforce it most fairly. The story in Scotland is that enforcement has been weak. All social change requires a combination of legislation, enforcement and social debate. There has been proper legislation in Scotland and some social debate, but also a lack of enforcement.
I want to concentrate on the statistics. In Committee, I made the point that with Scotland remaining at a stable level and things getting worse in England and Wales,  you could say that Scotland was a success story. I am very pleased that the noble Baroness, Lady Finlay, has done her maths and confirmed that this speculation is possibly accurate. However, I want to turn to government analysis, because government statistics say that overall, 5% of casualties in reported road accidents in 2019 occurred when at least one driver or rider was over the limit. In Wales, the figure was 6.9%, which is very disturbingly high. In England, the figure was 5.1% and in Scotland it was 4.6%, despite the fact that Scotland has a lower limit, which you would expect to lead to a higher percentage of those involved in accidents being over the limit.
So the difference might be marginal, but at least these statistics show a positive impact in Scotland—and, remember, each percentage point represents lives saved. I can think of no reason why British drivers and riders should be different from those across the world. We need to modernise, and this should be a top priority for the review of road traffic legislation—but I will be supporting the noble Lord if he presses this to a vote.

Lord Rosser: I well remember the debates that we had on this issue shortly after Scotland decided to reduce the drink-driving limit in 2014. My recollection was that the Government were in effect saying, “We want to wait and see what the outcome is in Scotland”, while others were saying, “Why wait to see what has happened? Why not just proceed and lower the limit to the same level as Scotland has done?”—which, as has already been said, would be in line with most other countries. The Government held their line that they wanted to wait for evidence from Scotland and would then look at the matter. I may be wrong, but I think that there was a general feeling that if it had had an impact on reducing drink driving in Scotland, the pressure would have been quite considerable on the Government to move, as far as this country was concerned.
Not all the suggested difficulties that might have arisen from reducing the limit in Scotland actually materialised. My understanding is that there was not a significant impact on pubs and restaurants, which is one thing that was said. We did not end up, as I understand it, with the police and the courts in Scotland being overloaded. My understanding—although obviously I will stand corrected if I am wrong—is that the lower limit was generally accepted by the public in Scotland. But it did not have the impact that many of us hoped it would have as far as drink-driving in Scotland was concerned. As I understand it—once again I will stand corrected if I am wrong—there have been academic studies by Bath University and Glasgow University that rather confirm that situation.
This is clearly an important issue and it needs looking at. There must be some logic in saying that one would have expected that reducing the drink-drive limit would have an impact on the level of such driving, to the benefit of us all—but it does not seem so far that it has had a great effect on the number or severity of accidents in Scotland. Views have been expressed this evening about lack of enforcement and lack of publicity for the change as far as Scotland was concerned, but certainly Scotland is not providing a particularly robust evidence base at present, subject to further studies and a more robust evidence base—the noble Baroness, Lady Finlay,  referred to issues concerning the figures. We need to look at all the factors that might contribute to making people safer, including, although it is only one, the level of enforcement, and the culture.
The Government have said that they are putting out what they describe as a wide call for evidence on a number of road safety issues. It is supposed to be starting in a month’s time. I hope we will be told that this will be a major one, because the question is repeatedly asked why we have a much higher limit than virtually everywhere else, and that surely the logic would show that if you reduce the limit you ought to get a benefit from that in a reduction in drink-driving.
So we welcome the call for evidence that the Government are making. I know that I cannot speak for all my colleagues in saying this, but we accept that the evidence from Scotland is not showing that the change has had the effect many of us thought it would have. There may well be reasons for that and perhaps that needs further investigation and study, but our view is that, as long as the Government commit to look at this seriously in the review that is being undertaken and the call for evidence on a number of road safety issues, we should not vote on this issue immediately but wait for that further review. However, we have heard points raised quite validly about whether this review will go on and on, or whether it will be conducted within a reasonable timescale to enable decisions to be made that could involve further legislation.
The Government need to say what plans they have to bring down the level of drink-driving. One hopes that that will emerge from the review that is being undertaken and that the course of reducing the limit might well be part of it. In the meantime, we will wait for this call for evidence and the outcome of the review. We want some understanding that it will be conducted within a reasonably speedy timescale. In the meantime, we could not support the amendment that my noble friend Lord Brooke of Alverthorpe has moved if he decided to push it to a vote.

Lord Berkeley of Knighton: My Lords, like the noble Baroness, Lady Randerson, I would have some concerns about Amendment 62 and what that might lead to in terms of random breath testing. I am sure that the noble Lord, Lord Paddick, would have some thoughts about that.
I will say just one thing on the principal amendment. I thought what the noble Baroness, Lady Finlay, said was very enlightening and I do not think we can totally ignore it. The Government’s slogan, on which they have spent a great deal of money, is “Don’t drink and drive”. It is not “Drink less and drive”. So I would have thought that anything that hammers that home could be only a good thing.

Lord Sharpe of Epsom: My Lords, I am grateful to the noble Lord, Lord Brooke, for again affording us the opportunity to debate the issue of drink-driving. I commend him for his long association with this particular subject; it well predates my time in this House. I know that, since the debate in Committee, he and other noble Lords have discussed this issue and other matters with the road safety Minister.
Let me again reassure the noble Lord—I fear I am at risk of repeating what I said in Committee—that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. We are committed to tackling drink-driving and ensuring that those guilty of this offence are detected and appropriately punished. As I explained in Committee, our approach combines tough penalties and rigorous enforcement with our highly respected and effective THINK! campaigns. This approach reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others.
Turning to Amendment 61, which seeks to change the prescribed limits, we remain to be persuaded that the proposed lowering of the limits would deliver the desired result. We believe that more work needs to be done to assess whether a reduction in the drink-drive limit would deliver the hoped-for benefits in improved road safety and a reduction in deaths and injuries on our roads. I think every noble Lord involved in this short debate has referenced Scotland. The evidence we have, following the change in the law in Scotland in 2014, does not suggest a material improvement in road safety in that jurisdiction, as the noble Lord, Lord Rosser, just noted.
Noble Lords will be aware of the findings from the studies by the University of Bath and the University of Glasgow that have also been referenced. The research by the University of Bath established that there has been no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland. The independent evaluation by the University of Glasgow, published by the Lancet in December 2018, found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated with a small reduction in per capita alcohol consumption from on-trade alcohol sales.
I obviously cannot comment on enforcement. I have seen the statistics too, but I think the noble Baroness, Lady Randerson, is right: each percent represents lives saved, and we should be aware of that. Of course, the personal tragedies movingly mentioned by the noble Baroness, Lady Finlay, also bring this debate into sharp relief.
The Government believe that our approach to any proposals for changing the law in this or indeed any other area must be evidence based. As things stand, the evidence does not support the case for lowering the drink-drive limit, although we of course keep this matter under review. But until there is a weight of evidence demonstrating that material enhancements to road safety would result from a lowering of the limit, the Government do not believe that the case for Amendment 61 has been made.
Turning to Amendment 62, which seeks to introduce random breath testing, it is again unclear to the Government if this would deliver the desired result of making the roads safer. As I indicated in response to a similar amendment in Committee, more work needs to be done to see whether there is any benefit resulting  from introducing random breath testing. We would also need to examine carefully the equalities and human rights implications of doing so—an issue which I know is of concern to a number of noble Lords. I also take the point that the noble Lord, Lord Brooke, made on deterrents, particularly with regard to recent announcements in other topical areas on this subject, and I will take those back.
Having said all of that, I am going to repeat what my noble friend Lady Williams said earlier. My ministerial colleagues in the Department for Transport are currently working on a call for evidence on parts of the Road Traffic Act. While details are still being worked up as to its scope, I am sure they are paying close attention to the points raised in this debate and others and will welcome suggestions on what issues could be tackled. Once the call for evidence is concluded, we would welcome submissions from all interested parties, including noble Lords and Members of the other place. I obviously cannot give commitments on how long this will take, but I hope, having heard the debate in this House, that it will be speedy.
In conclusion, we need more evidence to justify the changes to road traffic legislation proposed in these two amendments. To this end, as I mentioned, the department is considering that call for evidence. I would therefore like to ask the noble Lord, Lord Brooke, to be patient for a little while longer. In the meantime, I hope he will be content to withdraw his amendment.

Baroness Finlay of Llandaff: Before the Minister sits down, can he just confirm, in the light of the comments he has made, that the consultation will consider lowering the limit below 50 down to 10 or 20, which would allow for what is termed “Grandma’s sherry trifle”, served up at a weekend, but would not —I repeat not—allow for a glass of an alcoholic beverage if you are holding the car keys? It may well be that 50 is completely the wrong level because it gives mixed messages.

Lord Sharpe of Epsom: I cannot give that assurance but, as I say, the scope of the consultation is still being worked up. As I have also said, once the call for evidence is concluded we would welcome submissions from all interested parties, so I am sure that that can be part of the scope.

Lord Brooke of Alverthorpe: My Lords, I am grateful to all who have participated in the debate and particularly to the noble Baroness, Lady Finlay, for the work that she has done. I first express my sympathy about the experience that she has had. I am grateful to others who have spoken in support. I will not go on at length at this time of night, but I have two Front Benchers who are not happy about what I am seeking—or are certainly not supporting it.
My real concern is that we have been at this for years. I am offered, along with others, a review. But if the Scottish evidence is no different, we are in a Catch-22 situation where the Government will say, “The evidence from Scotland is not satisfactory from our point of view, and therefore we will make no change”. Personally, I am very much in the camp with  the noble Baroness, Lady Bennett, and others who would like to see an even lower limit such as the Swedish one of 20. It cannot be nil, because the body itself generates a degree of alcohol that would always register, so for me personally it would be 20, but I have no evidence—other than going to Sweden and bringing it back—that will persuade the Minister. He is hooked on Scotland and what has happened. Changes need to be made in Scotland to enforce the limit more, given the problems encountered there.
So, I do not see a great deal of hope in withdrawing and waiting for this review, when there is no guarantee that the Government will take a different position—namely, that which I started on: the science is that if you drink, your risk of a collision goes up the more you drink. That is a fact of life and the scientists prove it, yet we go in a different direction and have a lead and guidance from the Government which allows people to drink and drive more than in any country in Europe, bar Malta. I believe it is wrong. I think that many Ministers believe it is wrong, and maybe even our Front Bench think it is wrong. So tonight, although I regret that it is late and I will keep noble Lords longer, I will not withdraw my amendment; I wish to test the mood of the House.
Ayes 18, Noes 105.

Amendment 61 disagreed.
Amendments 62 to 66AA not moved.
Consideration on Report adjourned.

Armed Forces Bill
 - Returned from the Commons

The Bill was returned from the Commons with reasons.
House adjourned at 11.07 pm.